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Context of 'October 14, 1987: Justice Department Oversight Unit Again Begins to Investigate Inslaw Allegations'

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An application known as PROMIS, the Prosecutor’s Management Information System, is developed. [Wired News, 3/1993] It is designed to be used to keep track of criminal investigations through a powerful search engine that can quickly access all data items stored about a case. [Salon, 7/23/2008] William Hamilton, one of the application’s developers, will describe what it can be used to do: “Every use of PROMIS in the court system is tracking people. You can rotate the file by case, defendant, arresting officer, judge, defence lawyer, and it’s tracking all the names of all the people in all the cases.” Wired magazine will describe its significance: “What this means is that PROMIS can provide a complete rundown of all federal cases in which a lawyer has been involved, or all the cases in which a lawyer has represented defendant A, or all the cases in which a lawyer has represented white-collar criminals, at which stage in each of the cases the lawyer agreed to a plea bargain, and so on. Based on this information, PROMIS can help a prosecutor determine when a plea will be taken in a particular type of case.” In addition, PROMIS can integrate several databases without requiring any reprogramming, meaning it can “turn blind data into information.” PROMIS is developed by a private business entity that will later become the company Inslaw, Inc. Although there will later be a series of disputes over the application’s use by the US government and others, this version of PROMIS is funded by a Law Enforcement Assistance Administration grant and is therefore in the public domain. [Wired News, 3/1993]

Entity Tags: Inslaw, Inc., William Hamilton

Timeline Tags: Inslaw and PROMIS

C. Madison “Brick” Brewer, the general counsel of the Institute for Law and Social Research, leaves his position. The circumstances of his departure from the institute, which will later be transformed into the company Inslaw, will later be disputed. The departure is significant because Brewer will later be hired by the Justice Department to manage a contract with Inslaw (see April 1982), and will adopt a combative approach to his former employer (see April 14, 1982 and April 19, 1982).
Hamilton's Account - Inslaw owner William Hamilton will later say that Brewer is asked to leave because he is unable to perform his duties, but is given sufficient time to find another job instead of being forced out. Inslaw vice president John Gizarelli will corroborate Hamilton’s account, telling the House Judiciary Committee under oath that Hamilton told him Brewer had been asked to resign.
Contradictory Statements by Brewer - Brewer will give different accounts of his departure. He will tell investigators from the Justice Department’s Office of Professional Responsibility (OPR): “At no time did he [Hamilton] ever say you are fired and at no time did he [Hamilton] ever indicate great dissatisfaction with my performance.… I never felt that I was discharged, let alone wrongfully discharged.” He will repeat this line to investigators from the House committee: “I never thought that he asked me to leave. It has always been my understanding that I was not asked to leave. I have never viewed my departure from the institute as either being a discharge, or forced.” However, another statement he will make puts a different slant on this; he tells the OPR: “[I]t has been my view that Mr. Hamilton obviously wanted me gone. He had been sending these signals, if not directly indicating a job dissatisfaction, since April, and it was now February, almost one year later, and I was still extricating myself.” In addition, Brewer will say in a court appearance: “On one occasion Mr. Hamilton came and said to me, ‘can you go to lunch?’ I explained that I couldn’t. And he said, ‘Well, what I have to say over lunch I can say right now. I think you ought to find [an] alternative—that you ought to leave the Institute.’”
Impact - The committee will comment, “The circumstances surrounding Mr. Brewer’s departure from the institute appear to have had a major influence over his views about Inslaw and its president, Mr. Hamilton.” Gizarelli will say that he had occasional contact with Brewer before his departure, and: “[H]e thought that Mr. Hamilton was insane. And I think he meant that literally. He did make comments about his rationality, his sanity, thought he wasn’t capable of leading an organization. The tenor of his remarks were to me very startling.” [US Congress, 9/10/1992]

Entity Tags: William Hamilton, Inslaw, Inc., House Judiciary Committee, John Gizarelli, C. Madison “Brick” Brewer

Timeline Tags: Inslaw and PROMIS

Laurence McWhorter, director of the Executive Office for US Attorneys, tells one of his subordinates, “We’re out to get Inslaw.” Inslaw developed the PROMIS database and search application (see Mid-1970s) and is soon to become embroiled in a dispute with the Justice Department over it. Mallgrave will later tell Wired magazine: “We were just in his office for what I call a B.S. type discussion. I remember it was a bright sunny morning.… [McWhorter] asked me if I would be interested in assuming the position of assistant director for data processing… basically working with Inslaw. I told him… I just had no interest in that job. And then, almost as an afterthought, he said ‘We’re out to get Inslaw.’ I remember it to this day.” [Wired News, 3/1993]

Entity Tags: Inslaw, Inc., Frank Mallgrave, Executive Office for US Attorneys (DOJ), Laurence McWhorter

Timeline Tags: Inslaw and PROMIS

A PROMIS oversight committee is formed at the Justice Department to supervise the implementation of the PROMIS software at US attorneys’ offices. The committee’s members are initially Associate Attorney General Rudolph Giuliani, Associate Deputy Attorney General Stanley E. Morris, Director of the Executive Office for US Attorneys William P. Tyson, and the Justice management division’s Assistant Attorney General for Administration Kevin D. Rooney. The associate attorney general is the chairman of the committee. The date on which the committee is established is unclear, but it will be mentioned in a memo dated August 13, 1981, so it must be at this date at the latest. Lowell Jensen will also be significantly involved in the committee, first as the associate attorney general for the criminal division until early 1983, and then as associate attorney general, meaning he also chairs the committee. The main official who reports to the committee is PROMIS project manager C. Madison “Brick” Brewer, although he will not be hired by the department until the start of the next year (see April 1982). [US Congress, 9/10/1992]

Entity Tags: Justice Management Division, William P. Tyson, Executive Office for US Attorneys (DOJ), US Department of Justice, Criminal Division (DoJ), Kevin D. Rooney, Stanley E. Morris, Rudolph (“Rudy”) Giuliani, Lowell Jensen

Timeline Tags: Inslaw and PROMIS

The Justice Department issues a request for proposals (RFP) for the installation of public domain PROMIS software. Two of the 104 companies that ask for the request for proposals submit bids. However, one of them, Systems Architects, Inc., has problems in its bid and the contract will be awarded to the other, Inslaw (see March 1982).
Problems with Installation Concept - The installation is to be on minicomputers and word processors, although both Inslaw, which developed PROMIS, and other potential bidders had previously advised the department not to try to perform PROMIS functions on word processing equipment, as it is not powerful enough. One reason for this is that PROMIS involves over 500,000 lines of Common Business Oriented Language (COBOL) program code and requires a very large-capacity computer at this time. In addition, Inslaw advises the department to move toward the use of more powerful computers that could perform both case management and word processing. However, the department ignores the advice.
Existence of Privately-Funded Enhancements 'Explicit' - There will later be an argument about how much the department should pay Inslaw for the software. This dispute will turn on privately-funded enhancements to the application Inslaw says it makes after an initial version of PROMIS was developed using government money. According to a report drafted by the House Judiciary Committee, during the contract negotiations, Inslaw is “explicit in stating to the department that its version of PROMIS had been enhanced with private funds and future enhancements funded outside the department’s contract were expected.” Nevertheless, the department will say that it owns the software, and will cite as support amendments to the RFP that make available to all bidders copies of the pilot project software, and state that the RFP does not anticipate redevelopment of the public domain PROMIS software used in the pilot offices. If any alterations are made under the contract, they are to be made available to the offices using a current version. Regarding the amendments, the committee will comment, “Unfortunately, this language may also have blinded department management to the idea that Inslaw had made privately funded enhancements that were its property.” [US Congress, 9/10/1992]

Entity Tags: US Department of Justice, House Judiciary Committee, Inslaw, Inc., Systems Architects, Inc.

Timeline Tags: Inslaw and PROMIS

The PROMIS database application is used for a program called “Follow the Money” to track loans made by Western banks to the Soviet Union and its allies. The top-secret program is run for the National Security Council (NSC) by Norman Bailey, who uses NSA signals intelligence to track the loans. Bailey will later say that the PROMIS application is “the principal software element” used by the NSA and the Treasury Department in their electronic surveillance programs that track financial flows to the Soviet bloc, organized crime, and terrorist groups. According to Bailey, this program marks a significant shift in resources from human spying to electronic surveillance, as a way to track money flows to suspected criminals and American enemies. [Salon, 7/23/2008]

Entity Tags: National Security Agency, US Department of the Treasury, National Security Council, Norman Bailey

Timeline Tags: Inslaw and PROMIS

Inslaw wins a $9.6 million contract from the Justice Department to install the public domain vesion of PROMIS application in 20 US attorneys’ offices as a pilot program. PROMIS is an application designed to be used by prosecutors to keep track of case records (see Mid-1970s). If the trial installation is successful, the company will install PROMIS in the remaining 74 federal prosecutors’ offices around the country. The contract is also for the necessary training, maintenance, and support for three years. According to William Hamilton, one of Inslaw’s owners, the eventual market for complete automation of the Federal court system is worth up to $3 billion. However, this is the last contract Inslaw receives from the Justice Department for PROMIS, as the deal becomes mired in a series of disputes. [US Congress, 9/10/1992; Wired News, 3/1993]

Entity Tags: William Hamilton, US Department of Justice, Inslaw, Inc.

Timeline Tags: Inslaw and PROMIS

C. Madison “Brick” Brewer gets the job of supervising a contract with Inslaw for the installation of the PROMIS database and search application (see March 1982). [US Congress, 9/10/1992; Wired News, 3/1993] According to a report by the House Judiciary Committee, Brewer gets the job from William P. Tyson of the Justice Department’s Executive Office for US Attorneys (EOUSA). [US Congress, 9/10/1992] However, according to Wired magazine, Brewer is appointed by EOUSA Director Laurence McWhorter, who had told a previous candidate for the position that he was “out to get Inslaw” (see Spring 1981). [Wired News, 3/1993] Brewer had originally been hired by the EOUSA in January. [US Congress, 9/10/1992] He once worked for Inslaw, but was allowed to resign when its founder William Hamilton found his performance inadequate (see 1976). [Wired News, 3/1993] Brewer will soon demonstrate his hostility to Inslaw, and the company will ask that he be replaced (see April 14, 1982, April 19, 1982, and Mid-April 1982).
Importance of Job - As the project manager, Brewer is involved in all major contract and technical decisions, including forming the department’s position on Inslaw’s claim that it should be paid for privately-funded enhancements it makes to PROMIS. Brewer also reports on progress on the contract to the department’s PROMIS Oversight Committee (see August 13, 1981 or Before).
Comment by Assistant Attorney General - Assistant Attorney General Lowell Jensen will later comment: “I would think that the better path of wisdom is not to do that [i.e. hire an allegedly fired employee to direct the contract of his former employer] if that’s possible to do. I think that it’s better to have these kinds of issues undertaken by people who don’t have questions raised about them one way or the other whether they are biased in favor of or against the people they deal with.” However, this thinking apparently does not impact the department’s decision to hire Brewer.
House Judiciary Committee Investigation - In the light of these circumstances, the House Judiciary Committee will call the appointment a “curious choice,” partly because Brewer tells it: “I was not a computer person. We talked about my role viewed as being liaison, the person who would make things happen, a coordinator. It was not contemplated that I would, by osmosis or otherwise, learn computer science.” After interviewing Justice Department staff, the committee will find that it is “unable to determine how Mr. Brewer came to be considered for the position.” The committee will also point out: “The potential conflict of interest was an unsatisfactory situation irrespective of his admittedly negative feelings about his forced resignation from the company. Had Mr. Brewer taken actions which could have been construed to unduly favor Inslaw throughout the life of the contract, similar questions of potential conflict could just as easily have arisen either from within the department or from outside competitors of the company.”
Findings of Government Accountability Office and Permanent Subcommittee on Investigations - The Government Accountability Office and Congress’s Permanent Subcommittee on Investigations (PSI) will find that Brewer’s appointment as project manager creates an appearance of a conflict of interest that should have been avoided by the department. The PSI report will say, “The staff finds that the department exercised poor judgment in ignoring the potential for a conflict of interest in its hiring of the PROMIS project director [Brewer], and then, after receiving allegations of bias on his part, in failing to follow standard procedures to investigate them in a timely manner.”
Courts' Opinions - During the legal proceedings that stem from a dispute between Inslaw and the department, two courts will comment on the issue. George Bason, of the Bankruptcy Court for the District of Columbia, will say, “On the basis of the evidence taken as a whole, this court is convinced beyond any doubt that Brewer was consumed by hatred for and an intense desire for revenge against Mr. Hamilton and Inslaw, and acted throughout this matter in a thoroughly biased and unfairly prejudicial manner toward Inslaw.” William Bryant, of the District Court for the District of Columbia, will add, “The nature and circumstances of his separation from that employment are somewhat in dispute, but it is clear that Brewer was not happy in his job when he left it after being urged to do so by Hamilton.”
Brewer's Motivation - Inslaw attorney Harvey Sherzer will comment in court on one of the motivations apparently driving Brewer: “[H]e seemed to think there was something wrong with a contractor benefiting from a government contract.… The gist of what he seemed to be saying was that by performing this contract Inslaw and Mr. Hamilton, specifically, was making an effort to expand the company. And there seemed to be a negative inference toward Inslaw’s ability to use the base created by this contract to expand.” [US Congress, 9/10/1992]
Office of Professional Responsibility Conclusion - On the contrary, the Justice Department’s Office of Professional Responsibility will examine the matter and rule there is no conflict of interest. Brewer will later tell a federal court that everything he does regarding Inslaw is approved by Jensen. Jensen had previously supervised a product known as DALITE, which lost a major contract to Inslaw in the 1970s. [Wired News, 3/1993]

Entity Tags: Lowell Jensen, William Bryant, Office of Professional Responsibility, Laurence McWhorter, Permanent Subcommittee on Investigations, US District Court for the District of Columbia, House Judiciary Committee, Harvey Sherzer, Bankruptcy Court for the District of Columbia, C. Madison “Brick” Brewer, Inslaw, Inc., Executive Office for US Attorneys (DOJ), George Bason, Government Accountability Office, Frank Mallgrave, William P. Tyson

Timeline Tags: Inslaw and PROMIS

A lawyer acting for Inslaw writes to the Justice Department telling it that Inslaw intends to market a version of the PROMIS software commercially. The lawyer, Roderick M. Hills of Latham & Watkins, tells Associate Deputy Attorney General Stanley E. Morris, who is also a member of the committee overseeing PROMIS, that, even though the software was initially developed with government money (see Mid-1970s), private enhancements to it mean that Inslaw can sell the improved version for a fee. The letter is accompanied by a memorandum from Inslaw owner William Hamilton explaining the situation. Inslaw and the department have just signed a contract for Inslaw to implement the public domain version of the software at US attorneys’ offices for the department (see March 1982). However, the privately-funded enhancements mean that if the department chose to use the latest version, it would have to pay for the actual software, as well as installation and maintenance costs. [US Congress, 9/10/1992]

Entity Tags: Inslaw, Inc., Latham, Watkins & Hills, Roderick M. Hills, William Hamilton

Timeline Tags: Inslaw and PROMIS

One month after the Justice Department and Inslaw sign a contract on the installation of PROMIS software (see March 1982), a departmental official raises the possibility of terminating the contract. At a meeting of the PROMIS Project Team, project manager C. Madison Brewer, the Justice Department’s contracting officer Peter Videnieks, and Jack Rugh, the acting assistant director for the Office of Management Information Systems Support, discuss terminating the contract with Inslaw for convenience of the government, according to notes taken at the meeting. “Discussed Inslaw’s ‘PROMIS II’ memo, termination for convenience discussed,” read Videnieks’ notes. When the contract becomes the subject of a series of legal actions, the three men begin to suffer from what the House Judiciary Committee will call “severe memory loss” over what happened at the meeting. In a sworn statement, Brewer will say he does not recall the details of the meeting, but if this recommendation were made, it was made “in jest.” However, he will admit to being upset with Inslaw’s handling of the contract and its demand for payment for enhancements it had made privately to the application (see April 2, 1982). Bankruptcy Court Judge George Bason will comment: “All of the [Justice Department] witnesses who attended the April 14, 1982 meeting professed a total lack of memory about it. They testified they had no recollection of any such meeting. This court disbelieves that testimony. None of them could offer any credible explanation, or indeed any explanation, of the meaning of Videnieks’ handwritten notes other than what this court finds to be their meaning.… These notes constitute a ‘smoking gun’ that clearly evidences Brewer’s intense bias against Inslaw, his single-minded intent to drive INSLAW out of business, and Rugh’s and Videnieks’ complicity.” [US Congress, 9/10/1992]

Entity Tags: US Department of Justice, Peter Videnieks, Jack Rugh, C. Madison “Brick” Brewer, George Bason

Timeline Tags: Inslaw and PROMIS

Inslaw asks the Justice Department to appoint a manager other than C. Madison “Brick” Brewer to run the PROMIS project that Inslaw is working on for the department. Brewer had formerly worked for Inslaw, but had left under a cloud (see 1976), and later been hired by the department to supervise the contract between it and Inslaw (see April 1982). Following initial problems with Brewer (see April 14, 1982 and April 19, 1982), Inslaw asks Associate Deputy Attorney General Stanley E. Morris to replace him, as Inslaw owner William Hamilton thinks he has antagonistic feelings toward Inslaw due to their past. However, departmental officials say that Brewer’s skills and prior employment with Inslaw were important factors in his hiring by the department. Laurence McWhorter, deputy director of the Executive Office for US Attorneys, will later say that Brewer’s employment by Inslaw qualified him to “run the implementation of a case tracking system for US attorneys” and “to basically direct the implementation of a case tracking system in US attorneys offices.” The House Judiciary Committee will comment, “It is difficult to understand, however, how… McWhorter could make this statement” because Brewer himself admitted that at the time he left Inslaw, “he had very little, if any, experience in managing computer projects and government ADP [automated data processing] procurement law,” and he also “admitted to a lack of experience or detailed understanding of computers or software.” [US Congress, 9/10/1992]

Entity Tags: William Hamilton, Stanley E. Morris, US Department of Justice, Inslaw, Inc., C. Madison “Brick” Brewer, Executive Office for US Attorneys (DOJ), Laurence McWhorter, House Judiciary Committee

Timeline Tags: Inslaw and PROMIS

Justice Department manager C. Madison Brewer displays his hostility towards Inslaw, Inc., in a meeting to discuss the implementation of the PROMIS application. An Inslaw memorandum of the meeting says, “Brewer seized upon this issue [that Inslaw wanted to be paid for privately-financed enhancements it had made to the software] and launched into a tirade which was very emotional, unorganized, and quite illogical.” Brewer’s complaints are:
bullet The memo claiming the payments is “typical of Inslaw and [Inslaw owner] Bill Hamilton and that it was self-serving and unnecessary.”
bullet How did the Justice Department “know that we might say work was not finished under our government contracts and the next week copyright the work and begin selling it back to the Justice Department?”
bullet A press release about a contract awarded to Inslaw was inaccurate because “it described West Virginia as a successful implementation when in fact, they had spent an additional 20K [$20,000] on the project and Lanier was doing all the work.”
bullet The memo had caused “all kinds of problems in Justice and had many people upset.”
bullet “Illinois Criminal Justice Coordinating Council, Michigan Prosecuting Attorney’s Association, Andy Voight, and others,” would say that “Inslaw did not do good or successful work.”
bullet “Hamilton started the PROMIS system as an employee of the DC, USAO [US Attorneys Office in Washington, DC]. And that all of the software was developed with Federal funds and what right did Hamilton have to try to claim ownership of the software.”
The memo adds, “All of these comments were based with an obvious dislike of Bill Hamilton and a resentment for the success of Inslaw personified in him.” [US Congress, 9/10/1992]

Entity Tags: Inslaw, Inc., C. Madison “Brick” Brewer, US Department of Justice

Timeline Tags: Inslaw and PROMIS

Inslaw enhances its PROMIS software under contract to the Bureau of Justice Statistics, part of the Justice Department. The improvement, known as the “printed inquiry enhancement,” is delivered to the department on May 17, 1982. As the development of the original software and this enhancement is government-funded (see Mid-1970s), Inslaw cannot charge for providing the software to the government solely by virtue of this improvement. However, Inslaw also says it makes privately-funded enhancements at this time, enabling it to charge a fee for a version of the application with these enhancements (see April 2, 1982 and July 17, 1982). [US Congress, 9/10/1992]

Entity Tags: Bureau of Justice Statistics, US Department of Justice, Inslaw, Inc.

Timeline Tags: Inslaw and PROMIS

Inslaw’s attorney James Rogers writes to the Justice Department in an attempt to allay fears the department has about the implementation of the company’s PROMIS software for it. Rogers provides Associate Deputy Attorney General Stanley E. Morris with a detailed description of what the company plans to do to market the software commercially from the next month, and asks that the department respond to Inslaw to “ensure that these representations are correct.” Rogers says that the version of PROMIS the company will market comprises three parts: (1) the original application developed with government money (see Mid-1970s); (2) enhancements made by Inslaw using private money (see April 2, 1982 and July 17, 1982); and (3) an enhancement made for the Bureau of Justice Statistics (see Before May 17, 1982). Parts (1) and (3) do not entitle Inslaw to market the software commercially themselves. However, part (2) does. At the Justice Department, both C. Madison “Brick” Brewer, who supervises the PROMIS contract, and Peter Videnieks, the department’s contracting officer, are unhappy with this intention. The House Judiciary Committee will comment that this letter is “followed by a very antagonistic meeting” between Brewer and Inslaw representatives, and that Brewer and Videnieks continue “to believe that, because the department was currently funding the implementation of PROMIS, they could ignore Inslaw’s proprietary interest in the privately funded enhancements made to the PROMIS software.” [US Congress, 9/10/1992]

Entity Tags: Stanley E. Morris, US Department of Justice, Inslaw, Inc., C. Madison “Brick” Brewer, House Judiciary Committee, Peter Videnieks

Timeline Tags: Inslaw and PROMIS

In an internal memo, Inslaw employee John Gizarelli outlines a problem concerning the PROMIS project with the Justice Department official handling the contract, C. Madison “Brick” Brewer (see April 14, 1982, April 19, 1982, and Mid-April 1982). Brewer had left Inslaw under a cloud in the mid-1970s (see 1976), but is now overseeing the PROMIS implementation project at the Justice Department. Gizarelli writes to Inslaw vice president Dean Merrill that Brewer “has made no secret of his dislike of [Inslaw president] Bill Hamilton.” He adds: “In his present job, he is in a position to demonstrate his dislike. Bill, however, has kept his distance from the project and probably will continue to do so, until and unless there are large problems which Bill—in his role as president—must deal with personally. It is entirely possible—and I believe likely—that Brick will escalate the level of controversy until he draws Bill into the project, at which time he will be able to ‘lord it over him’ and show who’s boss. I don’t think Brick will ever be at peace with his feelings about Bill and therefore, with us.” [US Congress, 9/10/1992]

Entity Tags: Inslaw, Inc., Dean Merrill, John Gizarelli, C. Madison “Brick” Brewer, William Hamilton

Timeline Tags: Inslaw and PROMIS

Joyce Demy, an employee of the software company Inslaw, writes to the firm’s lawyer saying that it made enhancements to its PROMIS software worth $1 million between May 1981 and May 1982. She also tells the lawyer, James Rogers of Latham, Watkins & Hills, that no government money was used for the enhancements, which were paid for solely out of private funds. Prior to the enhancements, the original PROMIS software was in the public domain, as it had been paid for by government money (see Mid-1970s). However, the various privately-funded enhancements mean that Inslaw can claim ownership of it. [US Congress, 9/10/1992]

Entity Tags: Inslaw, Inc., James Rogers, Joyce Demy, Latham, Watkins & Hills

Timeline Tags: Inslaw and PROMIS

Associate Deputy Attorney General Stanley Morris writes to James Rogers, an attorney acting for Inslaw, and admits that the company owns privately funded improvements to the PROMIS software. Morris first points out that part of the software was financed by the government: “We agree that the original PROMIS, as defined in your letter of May 26, 1982 (see May 26, 1982), is in the public domain. We also agree that the printed inquiry enhancement is in the public domain.” This means that Inslaw could never charge the department for the use of software comprising only the original application and the printed inquiry enhancement (although it could of course charge for installation and maintenance). However, Morris adds, “To the extent that any other enhancements to the system were privately funded by Inslaw and not specified to be delivered to the Department of Justice under any contract or other arrangement, Inslaw may assert whatever proprietary rights it may have.” This means the department agrees that Inslaw can sell a version of the software with privately-funded enhancements. [US Congress, 9/10/1992] This statement is made in response to a letter sent by lawyers acting for Inslaw founder William Hamilton, informing the department that Inslaw intends to become a private company, and asking it to waive any proprietary rights it might claim to the enhanced version. Clarification will be provided in a 1988 deposition in which Deputy Attorney General Arnold Burns will say, “Our lawyers were satisfied that Inslaw’s lawyers could sustain the claim in court, that we had waived those [proprietary] rights.” [Wired News, 3/1993]

Entity Tags: US Department of Justice, William Hamilton, Arnold Burns, Inslaw, Inc., Stanley E. Morris

Timeline Tags: Inslaw and PROMIS

Peter Videnieks, the Justice Department’s contracting officer, writes to Inslaw to demand that it turn over all computer programs and supporting documentation relating to a contract to install PROMIS software for the department (see March 1982). In response, Inslaw says it will not do this without the department modifying the contract between them to acknowledge that it has inserted privately-funded enhancements into a public domain version developed for the department. This modification is apparently required because the department is using a time-share version of the application in advance of full installation, and Inslaw’s other timesharing customers also use a version with the enhancements. The department then says that the original contract called for software in which the government has unlimited rights, and asks Inslaw to identify the parts of the software it claims are proprietary. Inslaw offers to provide the enhanced software to the 94 attorneys’ offices covered by the contract at no extra charge, provided the department agrees to Inslaw’s rights and does not disseminate the software beyond these offices. However, Videnieks will later tell investigators for the House Judiciary Committee that the department believed that it had unlimited rights to any versions of PROMIS, and if restrictions were placed on data rights, then this would not satisfy Inslaw’s obligation under the contract. [US Congress, 9/10/1992]

Entity Tags: Inslaw, Inc., US Department of Justice, Peter Videnieks

Timeline Tags: Inslaw and PROMIS

The Justice Department’s PROMIS project manager, C. Madison “Brick” Brewer, writes a memo about potential developments in the project. In the memo, he says he is concerned about the possibility Inslaw, the company that is implementing the PROMIS software, may go bankrupt, and that staff at the Executive Office for US Attorneys may need to take over the project. Brewer also mentions the possibility that the contract with Inslaw could be terminated by the department. Inslaw will enter bankruptcy in 1985, at least partially as a result of the department withholding payments from it (see February 1985). [US Congress, 9/10/1992]

Entity Tags: C. Madison “Brick” Brewer, US Department of Justice, Inslaw, Inc.

Timeline Tags: Inslaw and PROMIS

The Justice Department makes a counter-proposal in the dispute over whether Inslaw should provide an enhanced version of the PROMIS software and documentation to the department to ensure against the company’s bankruptcy (see December 6, 1982). The counter-proposal is made in a letter from Peter Videnieks, the department’s contracting officer, to Harvey Sherzer, an attorney for Inslaw. Videnieks still wants a copy of the enhanced PROMIS software, but is willing to limit the software’s dissemination to the attorneys’ offices contemplated by the original contract. However, the department does not admit that Inslaw has made privately-funded enhancements to the software, so this limitation on dissemination will only apply if Inslaw can demonstrate the privately-funded enhancements that it claims have actually been made. Nevertheless, no mechanism for producing such proof will be specified. If Inslaw can show the software contains such enhancements, the department will either tell it to remove them, or negotiate regarding inclusion of the enhancements. [US Congress, 9/10/1992]

Entity Tags: Harvey Sherzer, Inslaw, Inc., Peter Videnieks, US Department of Justice

Timeline Tags: Inslaw and PROMIS

Inslaw and the Justice Department conclude a modification, number 12, to a contract under which the company is to install PROMIS software for the department (March 1982). The modification appears to resolve a dispute that has arisen between the two parties (see December 6, 1982 and March 18, 1983), as the department wants Inslaw to give it a copy of the software, but Inslaw says it has made privately-funded enhancements to the code and wants the department to undertake not to disseminate the enhanced software beyond the locations specified in the original contract (the department is entitled to disseminate an earlier, public domain version of the contract any way it wants). The modification says that Inslaw will give the department a copy of the software, and the department undertakes not to disseminate it in future, provided that Inslaw can demonstrate the enhancements were actually made. As a result of the agreement, the department will continue to make advance payments to Inslaw. It is this modification that leads to a series of legal disputes that will last well into the next decade, as the parties never come to an agreement on how the enhancements are to be demonstrated and the department begins to disseminate the software unchecked. [US Congress, 9/10/1992]

Entity Tags: Inslaw, Inc., US Department of Justice

Timeline Tags: Inslaw and PROMIS

A Justice Department official writes a memo saying he will soon provide the PROMIS application to an Israeli government representative. The official is Jack Rugh, the acting assistant director of the Office of Management Information Systems Support at the Executive Office of US Attorneys. The memo states that “Reference my memorandum to file dated April 22, 1983, on the same subject. [C. Madison] Brick Brewer [PROMIS project manager at the Justice Department] recently instructed me to make a copy of an LEAA version of PROMIS [a version wholly owned by the Justice Department] available to Dr. Ben Orr, a representative of the government of Israel. Dr. Orr called me to discuss that request after my earlier memorandum was written. I have made a copy of the LEM DEC version of PROMIS and will provide it along with the corresponding documentation, to Dr. Orr before he leaves the United States for Israel on May 16.”
High Officials Possibly Involved - The House Judiciary Committee will comment: “Given the international dimensions to the decisions, it is difficult to accept the notion that a group of low-level Department personnel decided independently to get in touch with the government of Israel to arrange for transfer of the PROMIS software. At the very least, it is unlikely that such a transaction occurred without the approval of high-level Department officials, including those on the PROMIS Oversight Committee.”
Actual Version of PROMIS Unclear - The committee will also later speculate that a version whose ownership is under dispute was also given to the Israelis, saying: “[I]t is uncertain what version actually was transferred. Department managers believed that all versions of the Enhanced PROMIS software were the Department’s property. The lack of detailed documentation on the transfer, therefore, only creates new questions surrounding allegations that Enhanced PROMIS may have been sold or transferred to Israel and other foreign governments.” [US Congress, 9/10/1992] Rugh will pass the application to Brewer for handing over to Orr six days later (see May 12, 1983).

Entity Tags: Executive Office for US Attorneys (DOJ), C. Madison “Brick” Brewer, US Department of Justice, Office of Management Information Systems Support, Benjamin Orr, Jack Rugh

Timeline Tags: Inslaw and PROMIS

Jack Rugh, the acting assistant director of the Office of Management Information Systems Support at the Justice Department’s Executive Office for US Attorneys, writes a memo turning over the PROMIS application to a colleague, C. Madison Brewer. The application is for passage to the government of Israel, a transfer already discussed by Brewer and Rugh (see May 6, 1983). Rugh writes: “Enclosed are the PROMIS materials that you asked me to produce for Dr. Ben Orr of the government of Israel. These materials consist of the LEM DEC PDP 11/70 version of PROMIS on magnetic tape along with the printed specifications for that tape, as well as two printed volumes of PROMIS documentation for the LEAA version of the system.” [US Congress, 9/10/1992]

Entity Tags: US Department of Justice, Office of Management Information Systems Support, Jack Rugh, C. Madison “Brick” Brewer, Benjamin Orr, Executive Office for US Attorneys (DOJ)

Timeline Tags: Inslaw and PROMIS

Inslaw implements its enhanced PROMIS software at 20 US attorneys’ offices. The implementation is performed pursuant to a contract signed by the company and the Justice Department in 1982 (March 1982). [US Congress, 9/10/1992]

Entity Tags: Inslaw, Inc., US Department of Justice

Timeline Tags: Inslaw and PROMIS

Deputy Attorney General Lowell Jensen and other members of the Justice Department’s PROMIS Oversight Committee approve the termination of part of a contract with Inslaw, Inc., for the installation of PROMIS software (see March 1982). The termination, pushed through despite a report that there was progress with Inslaw’s attorney on the resolution of contract problems, only concerns the part of the contract for the installation of PROMIS on word processing hardware in 74 small US attorneys’ offices. Inslaw will still be contracted to install the application in 20 other US attorneys’ offices. The termination is to be for default, as Inslaw has allegedly failed to perform this portion of the contract, although a different reason will later be given (see February 1984). [US Congress, 9/10/1992]

Entity Tags: Lowell Jensen, US Department of Justice

Timeline Tags: Inslaw and PROMIS

Justice Department procurement counsel William Snider issues a legal opinion stating that the department lacks legal justification to terminate part of a contract on the installation of PROMIS software for default. The department’s PROMIS Oversight Committee had decided on this course of action in December (see December 29, 1983), as it said that Inslaw, the company installing PROMIS, was not performing the contract properly. However, the committee decides to terminate the portion of the contract anyway, but for convenience—meaning Inslaw may receive some compensation—not default. PROMIS project manager C. Madison Brewer then notifies INSLAW owner William Hamilton that Deputy Attorney General Lowell Jensen has decided on partial termination. [US Congress, 9/10/1992]

Entity Tags: US Department of Justice, Lowell Jensen, William Hamilton, C. Madison “Brick” Brewer, William Snider

Timeline Tags: Inslaw and PROMIS

February 1985: Inslaw Declares Bankruptcy

Inslaw, the owner and developer of the enhanced PROMIS software, declares bankruptcy, applying for Chapter 11 reorganization at the Bankruptcy Court for the District of Columbia. Inslaw’s poor financial condition is at least partly due to a dispute with the Justice Department over the software, as the department owes it a minimum of $1.6 million in contract payments for implementation, but is withholding them. [US Congress, 9/10/1992]

Entity Tags: Bankruptcy Court for the District of Columbia, US Department of Justice, Inslaw, Inc.

Timeline Tags: Inslaw and PROMIS

Inslaw representatives Elliot Richardson and Donald Santarelli, a former administrator of the Law Enforcement Assistance Administration, meet with acting Deputy Attorney General Lowell Jensen to discuss a resolution of the Inslaw affair concerning the Justice Department’s alleged misappropriation of enhanced PROMIS software. Richardson and Santarelli ask for rapid talks to resolve disputes that have caused the department to withhold money from Inslaw and the company to go bankrupt, that the department consider a new proposal for work by Inslaw, and that Jensen appoint somebody to investigate Inslaw’s claims that some department officials, in particular C. Madison Brewer (see 1976 and April 1982), are biased against it. The business proposal is that Inslaw implement PROMIS in smaller US attorneys’ offices. This was originally covered by a contract between Inslaw and the department (see March 1982), but this part of the contract was terminated in 1984 (see December 29, 1983 and February 1984). [US Congress, 9/10/1992] The department rejects the proposal for additional work, but it is unclear whether the allegations against Brewer and others are investigated (see After March 13, 1985).

Entity Tags: Elliot Richardson, Donald Santarelli, Inslaw, Inc., Lowell Jensen, US Department of Justice

Timeline Tags: Inslaw and PROMIS

The Justice Department starts an internal review of the Inslaw affair, but the content of the review will be disputed. The review follows a meeting at which Inslaw representatives made three requests (see March 13, 1985): that the department negotiate on a resolution of the disputes between it and Inslaw; that it consider a new proposal made by Inslaw for additional work; and that it investigate allegations of misconduct against departmental personnel. The review is ordered by Deputy Attorney General Lowell Jensen and performed by Deputy Associate Attorney General Jay Stephens.
Jensen's Version - According to Jensen, the review is to look at the bias allegations. He will say he recalls discussing the results of Stephens’ review, adding that, based on Stephens’ assessment of the allegations, no review by the Office of Professional Responsibility is merited.
Stephens' Version - However, Stephens will tell the House Judiciary Committee under oath that he does not undertake a review of the misconduct allegations, but only looks at Inslaw’s business proposal. The committee will point out that this is in “direct contradiction” of Jensen’s version. While examining the proposal, Stephens receives several telephone calls from Inslaw attorneys Charles Work and Elliot Richardson. He feels they are lobbying the department very hard because they believe Inslaw has what the committee will call “some special relationship” with the department. According to a report by the committee, Work and Richardson attempt to convey that, “based on a longstanding relationship between the department and Inslaw, the department should look favorably on Inslaw’s new business proposal.”
Outcome of Review - However, Stephens reports to Jensen that the need for Inslaw’s business proposal is questionable and the department thinks the work can be done in-house. Jensen then writes to Richardson, saying that the department does not have an immediate need for the work, and will not act on the proposal.
Comment by House Committee - The committee will comment, “Because the department did not adequately investigate Inslaw’s allegations, the company was forced into expensive, time-consuming litigation as the only means by which the department’s misappropriation of Inslaw’s enhanced PROMIS could be exposed.” [US Congress, 9/10/1992]

Entity Tags: US Department of Justice, Inslaw, Inc., Elliot Richardson, Charles Work, Jay B. Stephens, Lowell Jensen

Timeline Tags: Inslaw and PROMIS

The Justice Department makes enhanced PROMIS software available at multiple locations, outside the framework of its contract with Inslaw on the application’s installation and over protests by the company. The software is first installed at 25 US attorneys’ offices in addition to 20 still covered by a contract between Inslaw and the department (see Between August 29, 1983 and February 18, 1985). According to Inslaw’s counsel Elliot Richardson, an enhanced version of the software is then illegally copied to support an additional two sites. Finally, 31 additional sites are brought on line via telecommunications. These additional, smaller US attorneys’ offices had initially been covered by the contract with Inslaw, but this portion of the contract was terminated in 1984 (see February 1984). Inslaw will repeatedly protest about this installation (see March 14, 1986), and a bankruptcy court will find it is in violation of the law (see September 28, 1987), although this ruling will be overturned (see May 7, 1991). [US Congress, 9/10/1992]

Entity Tags: Elliot Richardson, US Department of Justice, Inslaw, Inc.

Timeline Tags: Inslaw and PROMIS

Inslaw complains about additional installations of enhanced PROMIS software by the Justice Department. Inslaw and the department had a contract for the company to install the software in 20 large US attorneys’ offices and then dozens of smaller ones (see March 1982), but the portion of the contract for the smaller offices was terminated (see February 1984), and the department is installing an enhanced version of the software Inslaw says it owns in these smaller offices (see Between June 24, 1985 and September 2, 1987). The complaint is made in a letter by Inslaw president William Hamilton to H. Lawrence Wallace, the assistant attorney general for administration. “I am extremely disturbed and disappointed to learn that the Executive Office for US Attorneys has begun to manufacture copies of the PROMIS software for customization and installation in additional US attorneys offices, specifically those in St. Louis, Missouri, and Sacramento, California,” Hamilton writes. “This action occurs at the very time that the Department of Justice and Inslaw are attempting to resolve, by negotiation, Inslaw’s claim that the US attorneys version of PROMIS contains millions of dollars of privately-financed enhancements that are proprietary products of Inslaw and for which Inslaw has, to date, received no compensation.” [US Congress, 9/10/1992]

Entity Tags: H. Lawrence Wallace, Inslaw, Inc., US Department of Justice, William Hamilton

Timeline Tags: Inslaw and PROMIS

A lawyer acting for Inslaw warns the Justice Department that the department’s use of the enhanced version of PROMIS software contravenes bankruptcy legislation. Inslaw, in Chapter 11 bankruptcy due to a dispute between itself and the department (see February 1985), writes to the department’s contracting officer saying that the software’s use without Inslaw’s consent and the payment of licensing fees would contravene Inslaw’s property rights and its rights as a debtor in possession of the software under the bankruptcy code. In addition, Inslaw argues it is “a wrongful exercise of control over property of the debtor’s estate in violation of the automatic stay now in effect.” The automatic stay is a legal mechanism that prevents creditors—such as the Justice Department—harassing a debtor—such as Inslaw—in bankruptcy. Inslaw also says that the department’s dissemination of the software to third parties could damage or destroy the product’s commercial value, possibly wrecking the company. [US Congress, 9/10/1992]

Entity Tags: Inslaw, Inc., US Department of Justice

Timeline Tags: Inslaw and PROMIS

Inslaw files a complaint for a declaratory judgment, the enforcement of automatic stay bankruptcy protection provisions, and damages against the Justice Department in the dispute over the department’s alleged theft of enhanced PROMIS software. The automatic stay is one of the fundamental debtor protections provided by bankruptcy laws. It stops all collection efforts, harassments, and foreclosure actions, giving the debtor temporary relief from creditors. It is important because it allows a bankruptcy court to centralize all disputes concerning property of the debtor’s estate so that reorganization can proceed orderly and efficiently. [US Congress, 9/10/1992] Inslaw’s attorney for the case, Leigh Ratiner of the Washington firm Dickstein, Shapiro & Morin, chooses the bankruptcy court for the filing based on the premise that the Justice Department, as the creditor, has control of enhanced PROMIS. He will later say: “It was forbidden by the Bankruptcy Act for the creditor to exercise control over the debtor property. And that theory—that the Justice Department was exercising control—was the basis that the bankruptcy court had jurisdiction. As far as I know, this was the first time this theory had been used. This was ground-breaking.” [Wired News, 3/1993] Inslaw claims that Justice Department manager C. Madison Brewer, who was responsible for implementing PROMIS in the department, was instrumental in propelling Inslaw into bankruptcy (see April 1982, April 14, 1982, and April 19, 1982), and that he then hindered Inslaw in its development of a reorganization plan. Inslaw also alleges that its concerns were made known to the highest levels of Justice Department’s management, without any response. [US Congress, 9/10/1992]

Entity Tags: US Department of Justice, Leigh Ratiner, C. Madison “Brick” Brewer, Inslaw, Inc., Bankruptcy Court for the District of Columbia

Timeline Tags: Inslaw and PROMIS

The Office of Professional Responsibility (OPR), a Justice Department oversight component, receives a letter from Laurie A. Westly, chief counsel to Senator Paul Simon (D-IL), asking for its view of allegations made by the software company Inslaw against the Justice Department. The letter mentions claims of misconduct by department official Lowell Jensen. Westly also refers to litigation recently initiated by Inslaw (see June 9, 1986), specifically the claim that Jensen contributed to the bankruptcy of Inslaw and had a negative bias toward its software. She also asks whether Jensen has breached any ethical or legal responsibility as a department employee. [US Congress, 9/10/1992] It is unclear what action the OPR takes in response to this matter. However, it conducts a preliminary investigation into whether Jensen was biased against Inslaw this year, and this may be in response to this letter (see 1986). It will also begin a fuller investigation the next year (see October 14, 1987).

Entity Tags: Lowell Jensen, Laurie A. Westly, Office of Professional Responsibility, Paul Martin Simon, Inslaw, Inc., US Department of Justice

Timeline Tags: Inslaw and PROMIS

The Office of Professional Responsibility (OPR), an oversight unit at the Justice Department, conducts an initial review of bias allegations against departmental officials in the Inslaw affair. The exact timing of the review is uncertain, although it may come after a query about the case from Senator Paul Simon in June (see June 16, 1986). The review finds that there is no misconduct by Justice Department manager Lowell Jensen. According to statements made by acting OPR counsel Robert Lyon and assistant counsel David Bobzein to the House Judiciary Committee in 1990, the OPR does not perform a full review at this time because the allegations of bias are not an issue OPR would normally review. Therefore, it plans to rely on the findings of a bankruptcy court hearing the Inslaw case (see June 9, 1986). However, after the bankruptcy court finds in favour of Inslaw (see September 28, 1987), partly because it thinks the bias allegations are well founded, OPR begins a full investigation (see October 14, 1987) and concludes there was no bias (see March 31, 1989). [US Congress, 9/10/1992]

Entity Tags: US Department of Justice, Office of Professional Responsibility, David Bobzein, Inslaw, Inc., Lowell Jensen, Robert Lyon

Timeline Tags: Inslaw and PROMIS

Senator Charles Mathias (R-MD) sends a letter to the Justice Department asking about the dispute with Inslaw over enhanced PROMIS software. The letter will spark interest by Deputy Attorney General Arnold Burns in the case (see After July 9, 1986). [US Congress, 9/10/1992]

Entity Tags: Charles Mathias, US Department of Justice

Timeline Tags: Inslaw and PROMIS

Deputy Attorney General Arnold Burns is told that the Justice Department has waived its rights to enhanced PROMIS software (see August 11, 1982). Following a letter asking about the Inslaw case from Senator Charles Mathias (see July 9, 1986), Burns asks subordinates about the litigation with Inslaw and is told the company wants the department to pay royalties. Burns then suggests that the issue should be turned around and that a claim against Inslaw should be made for it to pay royalties to the government, which funded the development of the first version of PROMIS (see Mid-1970s). However, further research comes up with a result shocking to Burns, who will say in 1988, “The answer that I got, which I wasn’t terribly happy with but which I accepted, was that there had been a series of old correspondence and back and forthing [sic] and stuff, that in all of that, our lawyers were satisfied that Inslaw could sustain the claim in court, that we had waived those rights, not that I was wrong that we didn’t have them but that somebody in the Department of Justice, in a letter or letters, as I say in this back and forthing [sic], had, in effect, waived those rights.” The House Judiciary Committee will later comment, “Considering that the deputy attorney general was aware of Inslaw’s proprietary rights, the department’s pursuit of litigation can only be understood as a war of attrition between the department’s massive, tax-supported resources and Inslaw’s desperate financial condition, with shrinking (courtesy of the department) income.” The committee will add, “In light of Mr. Burns’ revelation, it is important to note that committee investigators found no surviving documentation (from that time frame) which reveal the department’s awareness of the relative legal positions of the department and Inslaw, on Inslaw’s claims to proprietary enhancements referred to by Mr. Burns.” [US Congress, 9/10/1992]

Entity Tags: Inslaw, Inc., House Judiciary Committee, Arnold Burns, US Department of Justice

Timeline Tags: Inslaw and PROMIS

Richard Willard, assistant attorney general of the civil division, writes a memo to Deputy Attorney General Arnold Burns about the Inslaw affair. According to Willard, George Bason, the bankruptcy court judge dealing with the Justice Department’s alleged theft of enhanced PROMIS software, should be taken off the case. Willard writes that Bason’s conduct is “so extraordinary that it warranted reassignment to another judge.” The House Judiciary Committee will comment that department officials are “concerned” about Bason’s handling of the case “very early in the litigation,” and that they think Bason tends to believe statements made by Inslaw. The committee will add: “The department believed that Judge Bason disregarded the sworn statements of department witnesses. The department also believed that Judge Bason made lengthy observations regarding the credibility of its witnesses and that Judge Bason’s uniformly negative conclusions were based on inferences not supported by the record.” Therefore, by the summer of 1987, the department is “actively seeking ways to remove Judge Bason from the case.” Bason will rule in favor of Inslaw in the autumn (see September 28, 1987). [US Congress, 9/10/1992]

Entity Tags: US Department of Justice, Richard Willard, George Bason, Civil Division, Arnold Burns, House Judiciary Committee

Timeline Tags: Inslaw and PROMIS

Justice Department staff tell Attorney General Edwin Meese that Judge George Bason of the Bankruptcy Court for the District of Columbia is “off his rocker,” according to a sworn statement Meese will later make to the House Judiciary Committee. Bason is presiding over a dispute between the department and the software company Inslaw (see June 9, 1986) and will eventually rule against the department (see September 28, 1987). This comment appears to be part of a campaign to get Bason removed from the case (see June 19, 1987) and a judge more favorable to the department appointed. [US Congress, 9/10/1992]

Entity Tags: Edwin Meese, US Department of Justice, George Bason

Timeline Tags: Inslaw and PROMIS

Deputy Attorney General Arnold Burns asks his subordinates at the Justice Department’s civil division to “consider initiatives for achieving a more favorable disposition of this matter [a legal dispute between the department and Inslaw over PROMIS software].” This is apparently a reference to the possible removal of Judge George Bason from the case, as the department thinks he is biased against it (see June 19, 1987). In response to the comments, the department will draft a report about removing Bason (see After July 7, 1987). [US Congress, 9/10/1992]

Entity Tags: Civil Division, Bankruptcy Court for the District of Columbia, George Bason, Arnold Burns, US Department of Justice

Timeline Tags: Inslaw and PROMIS

Following a request from the Justice Department’s leadership (see July 7, 1987), Michael Hertz, the director of the civil division’s commercial litigation branch at the department, writes a memo entitled “Feasibility of Motion to Disqualify the Judge in Inslaw.” The department has come to believe that the judge, George Bason, is biased against it (see June 19, 1987) and hopes to challenge his findings of fact by saying they are unsupported by evidence and reflect a desire to reach a preordained conclusion. This position is mostly based on the department’s observations that some of Bason’s findings of fact are “rambling and based on deductions that are both strained and have flimsy support.” However, Hertz writes to Deputy Assistant Attorney General Stuart Schiffer that the facts simply do not support a case of bias strong enough to disqualify Bason from the remainder of the Inslaw case. Hertz adds that he is “fairly confident” that any motion to dismiss Bason would not succeed and the denial of any such motion could not be successfully challenged on appeal. He gives the following reasons:
bullet The department has no evidence that what it views as “Bason’s incredible factual conclusions or alleged bias” actually stem from an extrajudicial source, as the case law requires;
bullet Adverse factual findings and inferences against the government are not enough to support a claim of bias; and
bullet Adverse credibility rulings about some of the government’s witnesses in a prior phase of the proceedings are not on their own sufficient to disqualify Bason from the rest of the proceedings.
Hertz says that attempting to demonstrate bias by Bason could adversely affect any future appeal by the department on the findings of fact. He also advises Schiffer that as much as the department may disagree with Bason’s findings: “[T]hey are not mere conclusory statements. Instead they reflect a relatively detailed judicial analysis of the evidence, including reasons for believing certain witnesses and disbelieving others, as well as consideration of what inferences might or might not be drawn from the evidence.” [US Congress, 9/10/1992] Despite this, the department will twice attempt to get Bason recused, failing both times (see January 19, 1988 and January 25, 1988).

Entity Tags: Michael Hertz, Civil Division, Bankruptcy Court for the District of Columbia, Stuart Schiffer, US Department of Justice

Timeline Tags: Inslaw and PROMIS

Assistant Attorney General Richard Willard reports to Deputy Attorney General Arnold Burns about the Inslaw case. Willard says that the Justice Department has developed a good trial record, but: “[T]here is virtually no reason for optimism about the judge’s ruling. Even though our witnesses performed admirably and we believe we clearly have the better case, Judge Bason made it apparent in a number of ways that he is not favorably disposed to our position.” The department has been trying to have Bason removed from the case for some time (see June 19, 1987) and he will soon rule in favor of Inslaw (see September 28, 1987). [US Congress, 9/10/1992]

Entity Tags: George Bason, Bankruptcy Court for the District of Columbia, Richard Willard, Arnold Burns, US Department of Justice

Timeline Tags: Inslaw and PROMIS

Judge George Bason of the Bankruptcy Court for the District of Columbia issues an oral finding that the Justice Department “took, converted, and stole” the enhanced version of Inslaw’s PROMIS software by “trickery, fraud, and deceit.” The ruling is issued at the end of a trial that lasts over two weeks and involves sworn statements from over 40 witnesses and thousands of pages of documentary evidence. Bason finds that a key departmental official, project manager C. Madison Brewer, was biased against Inslaw (see April 1982, April 14, 1982, and April 19, 1982). In addition, Brewer’s boss Lowell Jensen (see December 29, 1983 and February 1984) is said to have “a previously developed negative attitude about PROMIS and Inslaw,” because he had been associated with the development of a rival case management system while he was a district attorney in California, and this affected his judgment throughout his oversight of the contract. Further, the department violated bankruptcy protection legislation that applied to Inslaw by using and exercising control over Inslaw’s property—the enhanced PROMIS software—without negotiating a license fee. This oral finding is confirmed in a written opinion issued on January 25, 1988. In the written finding, Bason adds, “[T]his court finds and concludes that the department never intended to meet its commitment and that once the department had received enhanced PROMIS pursuant to Modification 12 (see April 11, 1983), the department thereafter refused to bargain in good faith with Inslaw and instead engaged in an outrageous, deceitful, fraudulent game of ‘cat and mouse,’ demonstrating contempt for both the law and any principle of fair dealing.” [US Congress, 9/10/1992]

Entity Tags: US Department of Justice, Lowell Jensen, George Bason, C. Madison “Brick” Brewer, Bankruptcy Court for the District of Columbia, Inslaw, Inc.

Timeline Tags: Inslaw and PROMIS

The Office of Professional Responsibility (OPR), an oversight component at the Justice Department, begins an investigation into allegations made by the software company Inslaw against some Justice Department staff. The OPR had conducted a preliminary investigation the previous year (see 1986), concluding the officials were not biased against the company. However, after a bankruptcy court finds serious wrongdoing by departmental officials (see September 28, 1987), Deputy Attorney General Arnold Burns asks for “a complete and thorough investigation into the allegation of bias and misconduct by various Justice Department officials against Inslaw.” The full investigation will again conclude that the officials were not biased against Inslaw (see March 31, 1989). [US Congress, 9/10/1992]

Entity Tags: US Department of Justice, Arnold Burns, Office of Professional Responsibility, Inslaw, Inc.

Timeline Tags: Inslaw and PROMIS

Stuart Schiffer, deputy assistant attorney general for the Justice Department’s civil division, writes to Richard Willard, the assistant attorney general for the civil division, about the Inslaw case. Schiffer writes: “[Judge George] Bason has scheduled the next [Inslaw] trial for February 2 [1988]. Coincidentally, it has been my understanding that February 1 [1988] is the date on which he [Bason] will either be reappointed or replaced.” Bason had ruled in favor of Inslaw (see September 28, 1987) and the department had been trying to have him removed from the case for months (see June 19, 1987). After Bason’s bid for reappointment fails (see December 15, 1987), he will say that the department used its influence against him (see December 5, 1990). [US Congress, 9/10/1992]

Entity Tags: George Bason, Civil Division, Richard Willard, Stuart Schiffer, US Department of Justice, Bankruptcy Court for the District of Columbia

Timeline Tags: Inslaw and PROMIS

An official written report is drafted for the panel considering the appointment of a judge to the Bankruptcy Court to the District of Columbia. The two-page report briefly assesses the final four candidates, including the incumbent George Bason, who is, however, at loggerheads with the Justice Department over his handling of the Inslaw case (see June 19, 1987 and September 28, 1987). However, another—longer but unofficial—report will be drafted two weeks later and will be critical of Bason (see December 8, 1987). [US Congress, 9/10/1992]

Entity Tags: Bankruptcy Court for the District of Columbia, George Bason

Timeline Tags: Inslaw and PROMIS

An apparently unofficial, confidential memo marked “read and destroy” is drafted about the four final candidates for the position of judge at the Bankruptcy Court for the District of Columbia. The memo is clearly critical of the incumbent, George Bason, who is up for reappointment. Bason recently displeased the Justice Department by ruling against it in the Inslaw affair over the alleged theft of enhanced PROMIS software (see September 28, 1987). The memo states that “its purpose is to ‘help’ elucidate in particular our reasoning in ranking the candidates as we did,” and describes each of the four. The House Judiciary Committee will comment: “What is striking about the memorandum is that the description of each candidate except Judge Bason begins with positive commentary about the individual. The section describing Judge Bason begins, ‘I could not conclude that Judge Bason was incompetent.’ Other phrases used to describe Judge Bason include ‘he is inclined to make mountains out of molehills,’ ‘Judge Bason seems to have developed a pronounced and unrelenting reputation for favoring debtors,’ and finally, ‘Judge Bason evidenced no inclination to come to grips personally with the management challenge posed by the terrible shortcomings of the Office of the Clerk of our Bankruptcy Court.’” The memo is addressed to Judge Norma Johnson, who Bason will allege may have been an instrument of a campaign waged against him by the Justice Department (see May 1988). The panel appointing the bankruptcy court judge will meet a week later and decide not to give the position to Bason, but to a Justice Department lawyer who represented the government in the Inslaw case (see December 15, 1987). After Bason asks appeals court judges to reconsider his non-reappointment (see January 12, 1988), the memo will be circulated to them. The memo is unsigned, but an appeals court judge who later provides the memo to the House Judiciary Committee investigating the Inslaw affair will say another judge on the appointment panel drafted it. However, this judge will deny having done so. When, some years later, several members of the panel are asked by the committee whether they saw this memo, they will say they do not recognize it. [US Congress, 9/10/1992]

Entity Tags: Norma Johnson, George Bason, Bankruptcy Court for the District of Columbia, House Judiciary Committee

Timeline Tags: Inslaw and PROMIS

George Bason, a bankruptcy judge who recently found in favor of Inslaw in a dispute over the Justice Department’s alleged theft of enhanced PROMIS software (see September 28, 1987), is not reappointed to the bench. Bason had been appointed in February 1984 instead of another judge who had resigned mid-term, but a decision is now taken to replace him with a Justice Department attorney named Martin Teel, who had appeared before him in the Inslaw case. Although the official report for the appointments panel about the candidates did not criticize Bason (see November 24, 1987), a subsequent unofficial report addressed to Norma Johnson, the head of the panel, did (see December 8, 1987). The unofficial report claimed that there were shortcomings in Bason’s administration of the clerk’s office, although the office appears to be running smoothly by this time (see Second Half of 1987). Several judges on the selection council will later say they did not know much about the candidates, and therefore relied on Johnson and her interpretation of reports prepared about them. The House Judiciary Committee will find that Johnson’s oral presentation “played a large role in the selection,” that Johnson ran the panel “firmly,” and that the other members “relied on her judgment.” Overall, it will call the selection process “largely informal, undocumented, and highly subjective.” Bason learns he will not be reappointed from Chief Judge Patricia Wald, of the US Court of Appeals, on December 28. Bason will later say that Teel was not qualified for the position (see January 12, 1988) and that the department had influenced the selection process in order to have him removed from the bench (see December 5, 1990). In this context, Bason will point out to the House committee that Johnson had previously worked with a departmental official named Stuart Schiffer, so he could have influenced her against Bason (see May 1988). Bason will also note that Johnson worked with Judge Tim Murphy for 10 years from 1970, and that Murphy had later worked as the assistant director on the implementation of PROMIS at the Justice Department. [US Congress, 9/10/1992]

Entity Tags: Tim Murphy, Stuart Schiffer, Norma Johnson, Martin Teel, Jr., George Bason, Bankruptcy Court for the District of Columbia, House Judiciary Committee

Timeline Tags: Inslaw and PROMIS

George Bason, a bankruptcy judge who ruled in favor of Inslaw in a dispute with the Justice Department over the alleged theft of PROMIS software (see September 28, 1987) and was subsequently not reappointed to the bench (see December 15, 1987), requests a hearing on his non-reappointment before the Judicial Council of the District of Columbia. Bason criticizes the other candidate, Justice Department official Martin Teel, who was given the position, saying he has “a considerably shorter total period of legal experience,” as he has mostly worked on taxation matters, not bankruptcy, and for the last few years has worked as a reviewer and then manager, without doing his own independent work. Teel will dispute this characterization in a letter to the House Judiciary Committee, saying he was qualified and, when appointed, had “six years of fairly extensive bankruptcy experience.” The request for a hearing will not change the decision to not reappoint Bason. [US Congress, 9/10/1992]

Entity Tags: Bankruptcy Court for the District of Columbia, George Bason, Judicial Council of the District of Columbia, Martin Teel, Jr.

Timeline Tags: Inslaw and PROMIS

The Justice Department files a motion that bankruptcy court judge George Bason recuse himself from further participation in a case over the bankruptcy of Inslaw and the department’s alleged theft of the enhanced PROMIS application, saying that he is biased against the department. Bason had ruled in favor of Inslaw (see September 28, 1987) and the department has been trying to have him removed from the case for months (see June 19, 1987). The motion is filed despite a report from Michael Hertz, the director of the civil division’s commercial litigation branch at the department, saying that such a move would not succeed (see After July 7, 1987). The bankruptcy court denies the motion three days later. [US Congress, 9/10/1992] The department will make a similar request later in the month (see January 25, 1988).

Entity Tags: Bankruptcy Court for the District of Columbia, George Bason, US Department of Justice

Timeline Tags: Inslaw and PROMIS

The Justice Department again tries to get Judge George Bason removed from the Inslaw case over the company’s bankruptcy and the department’s alleged theft of an enhanced version of the PROMIS software. Bason had ruled in favor of Inslaw (see September 28, 1987) and the department has been trying to have him removed from the case for months (see June 19, 1987). Following the failure of a recusal motion to Bason (see January 19, 1988), the department argues a motion before Chief Judge of the District Court for Columbia Aubrey Robinson for a writ of mandamus directing Judge Bason to recuse himself over allegations of bias. Robinson denies the department’s writ, ruling: “I can’t see anything in this record that measures up to the standards that would be applicable to force another judge to take over this case. There isn’t any doubt in my mind, for example, that the declaration filed by the Justice Department in support of the original motion is inadequate.” When the department appeals Bason’s ruling (see Between February 2, 1988 and November 22, 1989), it will again raise the issue of recusal, but District Court Judge William Bryant will say, “This court like the courts before it can find no basis in fact to support a motion for recusal.” [US Congress, 9/10/1992]

Entity Tags: George Bason, Bankruptcy Court for the District of Columbia, US Department of Justice, US District Court for the District of Columbia, William Bryant, Aubrey Robinson

Timeline Tags: Inslaw and PROMIS

The software company Inslaw submits allegations about the Justice Department’s conduct in the dispute over the enhanced PROMIS application to the Public Integrity Section (PIS), a departmental oversight component. The allegations follow on from the findings of a bankruptcy court favourable to Inslaw (see September 28, 1987 and January 25, 1988). In the complaint, Inslaw charges the department with:
bullet Procurement fraud. Inslaw claims that Attorney General Edwin Meese and former Deputy Attorney General Lowell Jensen schemed to ensure that enhancements made to the PROMIS software by Inslaw would be obtained for free by the department, which would then make them available to a businessman named Earl Brian;
bullet Violation of automatic stay debtor protection provisions invoked by the bankruptcy court. Inslaw says that by using the enhancements it made to the software after the bankruptcy case was filed, the department violated federal bankruptcy law. The bankruptcy court found that the department committed such violation, an act that could constitute an obstruction of the bankruptcy proceedings; and
bullet Attempts to change Inslaw’s Chapter 11 bankruptcy, for the company’s reorganization, into a Chapter 7 bankruptcy, for the company’s liquidation. Inslaw says that the department unsuccessfully attempted to have an official named Harry Jones detailed from the US Trustee’s office in New York to Washington to take over the Inslaw bankruptcy to get Inslaw liquidated. Inslaw also says unsuccessful pressure was exerted by departmental official Thomas Stanton on US Trustee William White to convert the bankruptcy case into a Chapter 7 liquidation.
The PIS says it will examine some of the allegations, but in the end it will not open a formal preliminary investigation (see February 29, 1988). [US Congress, 9/10/1992]

Entity Tags: William White, Inslaw, Inc., Harry Jones, Edwin Meese, Lowell Jensen, US Department of Justice, Public Integrity Section, Thomas Stanton

Timeline Tags: Inslaw and PROMIS

The Bankruptcy Court for the District of Columbia awards $8 million in damages to Inslaw in the dispute over the Justice Department’s use of the enhanced PROMIS software. The decision follows on from a ruling by the court that the department had violated Inslaw’s automatic stay bankruptcy protection rights by using and copying an enhanced version of Inslaw’s PROMIS software (see September 28, 1987). The award consists of $6.8 million in actual and punitive damages, as well as $1.2 million in attorneys’ fees. [US Congress, 9/10/1992]

Entity Tags: Bankruptcy Court for the District of Columbia, US Department of Justice, Inslaw, Inc.

Timeline Tags: Inslaw and PROMIS

The Justice Department appeals an adverse ruling by the Bankruptcy Court for the District of Columbia in its dispute with Inslaw (see September 28, 1987). The main grounds of the appeal include the following claims:
bullet The bankruptcy court judge appeared to be biased and should have recused himself. In addition, he used the bankruptcy proceedings to find culpability by the government;
bullet Inslaw did not prove that automatic stay protection provisions had been violated;
bullet The bankruptcy court lacked jurisdiction over Inslaw’s claim because the department had not waived its immunity from monetary judgements against the United States;
bullet The dispute is really a contract dispute, not a bankruptcy argument, and should therefore have been heard by the Department of Transportation Board of Contract Appeals;
bullet The court exceeded its authority in the field of damages, and no attorney fees should have been awarded.
The appeal court will find for Inslaw (see November 22, 1989), although its ruling will later be overturned (see May 7, 1991). [US Congress, 9/10/1992]

Entity Tags: US District Court for the District of Columbia, Inslaw, Inc., US Department of Justice

Timeline Tags: Inslaw and PROMIS

The Public Integrity Section (PIS), a Justice Department oversight component, decides not to open a preliminary investigation of the Inslaw affair over the department’s alleged misappropriation of PROMIS software (see February 1988). The decision is communicated in a memo drafted by William F. Weld, the assistant attorney general for the department’s criminal division, of which the PIS is a part. The PIS finds that at least some of the people Inslaw complains about, including Attorney General Edwin Meese, former Deputy Attorney General Lowell Jensen, and Deputy Attorney General Arnold Burns, are appropriate targets of an investigation and that Inslaw is generally a credible source for allegations. However, according to Weld, the information Inslaw provides is not specific enough to constitute grounds to begin a preliminary investigation of the need for an independent counsel. This is because the PIS regards the facts Inslaw presented as unsupported speculation that the officials were involved in a scheme to get the enhanced PROMIS software. Therefore, the review should be closed “due to lack of evidence of criminality.” The House Judiciary Committee will be critical of the PIS’s finding, calling its investigation “shallow and incomplete,” and saying the department appeared to be “more interested in constructing legal defenses for its managerial actions rather than investigating claims of wrongdoing which, if proved, could undermine or weaken its litigating posture.” [US Congress, 9/10/1992]

Entity Tags: US Department of Justice, House Judiciary Committee, William F. Weld, Inslaw, Inc., Lowell Jensen, Public Integrity Section, Arnold Burns, Edwin Meese, Criminal Division (DoJ)

Timeline Tags: Inslaw and PROMIS

A news reporter tells George Bason, a bankruptcy judge who found in favor of Inslaw in a dispute over the alleged theft of enhanced PROMIS software (see September 28, 1987), that his failure to be reappointed to the bench was because of pressure from the Justice Department. According to the House Judiciary Committee, Bason says that the reporter has “excellent contacts and sources in the department.” Bason will say the reporter suggests his removal from the bench could have been procured as follows: “The district judge chairperson of the Merit Selection Panel [Judge Norma Johnson, who was crucial to his non-reappointment (see December 15, 1987)] could have been approached privately and informally by one of her old and trusted friends from her days in the Justice Department. He could have told her that I was mentally unbalanced, as evidenced by my unusually forceful ‘anti-government’ opinions. Her persuasive powers coupled with the fact that other members of the panel or their law firms might appear before her as litigating attorneys could cause them to vote with her.” The reporter also tells Bason that a high-level department official has boasted to him that Bason’s removal was because of his rulings on the Inslaw affair. [US Congress, 9/10/1992]

Entity Tags: Bankruptcy Court for the District of Columbia, Norma Johnson, George Bason

Timeline Tags: Inslaw and PROMIS

The Office of Professional Responsibility (OPR), an oversight unit at the Justice Department, issues a report on the Inslaw affair over the department’s alleged theft of enhanced PROMIS software. The report finds that allegations of bias made by Inslaw and seconded by a bankruptcy court (see September 28, 1987) against departmental officials are unsupported. Inslaw had questioned the performance of former Attorney General Edwin Meese, former Deputy Attorney General Lowell Jensen, former Deputy Attorney General Arnold Burns, and others. The OPR says that the court’s findings on misconduct by department officials are “clearly erroneous.” In addition, the report says: “There is no credible evidence that the department took or stole Inslaw’s enhanced PROMIS by trickery, fraud, and deceit. Additionally, we have found no credible evidence that there existed in the department a plot to move to convert Inslaw’s Chapter 11 bankruptcy to one under Chapter 7 of the bankruptcy code.” The House Judiciary Committee will be extremely critical of this investigation, commenting, “During its investigation OPR chose to ignore the court’s findings and conclusions that there was bias against Inslaw at the department.” In addition, the committee will say that the OPR looked at the bias allegations in isolation and “incredibly” did not examine the merits of the contract dispute, meaning its conclusions on the taking of PROMIS and the type of bankruptcy were “gratuitous,” especially as Burns had told it the department agreed Inslaw owned the enhancements it made to PROMIS (see August 11, 1982). The committee will also point out that the OPR’s deputy counsel, Richard M. Rogers, said he was recused from the investigation because of his association with Burns, although he was present when Meese provided a sworn statement. In this context, the committee will highlight problems found by the Government Accountability Office with OPR around this time (see February 7, 1992). [US Congress, 9/10/1992]

Entity Tags: US Department of Justice, Office of Professional Responsibility, Richard M. Rogers, Inslaw, Inc., Arnold Burns, Edwin Meese, Lowell Jensen, House Judiciary Committee

Timeline Tags: Inslaw and PROMIS

Elliot Richardson, an attorney acting for the software company Inslaw, writes to Attorney General Richard Thornburgh about the dispute with the Justice Department over the department’s alleged misappropriation of enhanced PROMIS software. Richardson complains about a review of the case by the Public Integrity Section (PIS), an oversight component at the department, which came down against Inslaw’s claims (see February 29, 1988). He says that there is a conflict of interest because the department is defending itself against a civil action by Inslaw while at the same time investigating itself over the allegations that form the basis of the action. If the internal investigation found wrongdoing by the department, this would destroy the department’s case in court. His view is that the department has given priority to defending itself against the civil action, not the criminal investigation of its own wrongdoing. Richardson adds that no one from the PIS has contacted him, Inslaw counsel Charles Work, some of the witnesses in the case, or Inslaw’s owners. Despite this, the owners provided the PIS with the names of 30 people who had information relevant to the investigation in December 1988. Therefore, Richardson concludes that the only solution is for the department to appoint an independent counsel. [US Congress, 9/10/1992]

Entity Tags: US Department of Justice, Elliot Richardson, Inslaw, Inc., Public Integrity Section, Richard Thornburgh

Timeline Tags: Inslaw and PROMIS

Charles Work, counsel for the software company Inslaw, writes to the Justice Department over the department’s alleged misappropriation of enhanced PROMIS software. Work says that an investigation of the case by the Public Integrity Section, an oversight component at the department, is deficient, and he describes specific problems with it (see February 29, 1988). However, the department does not re-open the inquiry. [US Congress, 9/10/1992]

Entity Tags: Charles Work, Inslaw, Inc., Public Integrity Section, US Department of Justice

Timeline Tags: Inslaw and PROMIS

The US District Court for the District of Columbia upholds a bankruptcy court ruling in favor of Inslaw. The ruling concerned the dispute over the PROMIS software between Inslaw and the Justice Department, which was found to have violated bankruptcy protection provisions (see September 28, 1987 and February 2, 1988), but had appealed (see Between February 2, 1988 and November 22, 1989). Judge William Bryant finds that the department knew an enhanced version of PROMIS was Inslaw’s central asset, that ownership of the software was critical to the company’s reorganization in Chapter 11 bankruptcy, and that the department’s unilateral claim of ownership and its installation of the enhanced version in offices around the United States violated automatic stay bankruptcy provisions in multiple ways. In addition, Bryant agrees with the bankruptcy court’s conclusion that the department never had any rights to the enhanced version and that “the government acted willfully and fraudulently to obtain property that it was not entitled to under the contract.” In addition, when Inslaw suggested mechanisms to determine whether the private enhancements had been made, the government rejected them, and “when asked to provide an alternative methodology that would be acceptable, the government declined.” The department could have used established procedures to get relief from the automatic stay provisions, but simply chose not to do so. Bryant, who also finds that the department tried to convert Inslaw’s bankruptcy to Chapter 7 liquidation, adds, “What is strikingly apparent from the testimony and depositions of key witnesses and many documents is that Inslaw performed its contract in a hostile environment that extended from the higher echelons of the Justice Department to the officials who had the day-to-day responsibility for supervising its work.” Finally, Bryant finds that, as the case was grounded in bankruptcy law, the bankruptcy court was an appropriate forum to hear the dispute and it did not have to be submitted to the Department of Transportation Board of Contract Appeals, an arena for contract disputes. Although most of the damages awarded are upheld, as Bryant finds the bankruptcy court assessed damages based on the evidence it obtained, he reduces compensatory damages by $655,200.88. [US Congress, 9/10/1992]

Entity Tags: William Bryant, US Department of Justice, Inslaw, Inc., US District Court for the District of Columbia

Timeline Tags: Inslaw and PROMIS

The US Justice Department appeals an adverse decision of the US District Court for the District of Columbia in the dispute with Inslaw over the alleged theft of the enhanced PROMIS application (see November 22, 1989). The department raises some of the same issues previously raised in its appeal of a bankruptcy court ruling to the District Court and requests a reversal on the basis of the facts found in the bankruptcy court, which it says made “clear errors.” In addition, it argues:
bullet That its use of enhanced PROMIS did not violate automatic stay bankruptcy protection, so the argument should not have been in the bankruptcy court, but before the Department of Transportation Board of Contract Appeals under the Contract Disputes Act;
bullet That since no motion was filed to convert Inslaw from a chapter 11 bankruptcy to a chapter 7, there was no violation of the automatic stay protection in this respect;
bullet That the department has not filed a claim, so it is still entitled to sovereign immunity; and
bullet That damage awards for violation of the automatic stay can only be paid to individuals, not corporations.
The department will be successful and the District Court ruling will be overturned (see May 7, 1991). [US Congress, 9/10/1992]

Entity Tags: US Department of Justice, Inslaw, Inc., US Court of Appeals for the District of Columbia

Timeline Tags: Inslaw and PROMIS

A Canadian government official says that Canada is using the PROMIS software, according to Inslaw owners William and Nancy Hamilton. The Hamiltons pass the information on to the House Judiciary Committee, which is investigating allegations that the US Justice Department has misappropriated an enhanced version of the software from Inslaw and passed it on to other governments. The official, Marc Valois of the Canadian Department of Communications, apparently says that PROMIS is being used to support 900 locations around the Canadian government. [US Congress, 9/10/1992] Another Canadian official will soon make a similar statement (see January 1991), but both he and Valois will later say they were not referring to Inslaw’s PROMIS, but to a product of the same name from a different company (see March 22, 1991).

Entity Tags: William Hamilton, Nancy Hamilton, House Judiciary Committee, Department of Communications (Canada), Marc Valois

Timeline Tags: Inslaw and PROMIS

The House Subcommittee on Economic and Commercial Law holds a hearing about the failure of Attorney General Richard Thornburgh to provide full access to all documents and records about the Inslaw case. At the hearing, Inslaw owner William Hamilton and its attorney Elliot Richardson air their complaints about an alleged criminal conspiracy in the Justice Department’s handling of a contract with Inslaw and its alleged theft of an enhanced version of the PROMIS application. Steven Ross, the general counsel to the clerk of the US House of Representatives, refutes the Justice Department’s rationale for withholding documents related to possible wrongdoing by its officials involved with the Inslaw contract. In addition, Government Accountability Office representatives describe deficiencies in the Justice Department’s Information Resources Management Office and its administration of data processing contracts.
Bason's Allegations - Judge George Bason, a bankruptcy judge who had found in favor of Inslaw in a dispute with the department (see September 28, 1987), testifies that he believes his failure to be reappointed as bankruptcy judge was the result of improper influence on the court selection process by the department because of his findings. Bason cites information provided to him by a reporter (see May 1988) and negative statements about him by departmental employees (see June 19, 1987 and June 1987 or Shortly After). After investigating these allegations, the committee will find: “The committee could not substantiate Judge Bason’s allegations. If the Department of Justice had influence over the process, it was subtle, to say the least.” Bason will point out that Norma Johnson, the judge who chaired the meeting at which he was not reappointed (see December 15, 1987), had previously worked with departmental official Stuart Schiffer, who was involved in the Inslaw case. However, the committee will comment that it has “no information that Judge Johnson talked to Mr. Schiffer about Inslaw, Judge Bason, or the bankruptcy judge selection process.”
Thornburgh's Reaction - Following this hearing, Thornburgh agrees to cooperate with the subcommittee, but then fails to provide it with several documents it wants. [US Congress, 9/10/1992]

Entity Tags: Steven Ross, William Hamilton, Richard Thornburgh, Government Accountability Office, Elliot Richardson, George Bason, House Subcommittee on Economic and Commercial Law

Timeline Tags: Inslaw and PROMIS

The CIA says that it does not have the PROMIS database and search application (see Mid-1970s). The statement is made in response to a letter sent to CIA Director William Webster by the House Judiciary Committee on November 20 asking him to help them “by determining whether the CIA has the PROMIS software.” In response the CIA states, “We have checked with Agency components that track data processing procurement or that would be likely users of PROMIS, and we have been unable to find any indication that the [CIA] ever obtained PROMIS software.” However, information contradicting this will subsequently emerge. For example, a retired CIA official whose job it is to investigate the Inslaw allegations internally will tell Wired magazine that the Justice Department gave PROMIS to the CIA: “Well, the Congressional committees were after us to look into allegations that somehow the agency had been culpable of what would have been, in essence, taking advantage of, like stealing, the technology [PROMIS]. We looked into it and there was enough to it, the agency had been involved.” However, the official will say that when the CIA accepted PROMIS, it did not know that there was a serious dispute about the Justice Department’s ownership of the software. [Wired News, 3/1993]

Entity Tags: William H. Webster, House Judiciary Committee, Central Intelligence Agency, US Department of Justice

Timeline Tags: Inslaw and PROMIS

A second Canadian government official says that Canada is using the PROMIS software, according to Inslaw owners William and Nancy Hamilton. The Hamiltons pass the information on to the House Judiciary Committee, which is investigating allegations that the US Justice Department has misappropriated an enhanced version of the software from Inslaw and passed it on to other governments. The official, Denis LaChance of the Canadian Department of Communications, apparently says that PROMIS is being used by the Royal Canadian Mounted Police to support its field offices. [US Congress, 9/10/1992] Another Canadian official had previously made a similar statement (see November 1990), but both he and LaChance will later say they were not referring to Inslaw’s PROMIS, but to a product of the same name from a different company (see March 22, 1991).

Entity Tags: Nancy Hamilton, Denis LaChance, House Judiciary Committee, William Hamilton, Department of Communications (Canada)

Timeline Tags: Inslaw and PROMIS

Ari Ben-Menashe, a former employee of an Israeli intelligence agency, says he is willing to testify before the House Judiciary Committee in its investigation into the alleged theft of PROMIS software. In return, however, he asks the committee to arrange an extension for his US visa, which is about to expire, and to provide him with immunity from any prosecution. The immunity is to relate to information and documents he allegedly possesses regarding the illegal distribution and sale of an enhanced version of the software by businessman Earl Brian to the Israeli government. However, the committee refuses the request, and Ben-Menashe will later provide a sworn statement with no conditions (see May 29, 1991). [US Congress, 9/10/1992]

Entity Tags: House Judiciary Committee, Ari Ben-Menashe

Timeline Tags: Inslaw and PROMIS

A Canadian government official tells the US House Judiciary Committee that Canada is reluctant to cooperate with the committee’s inquiry into the alleged theft of a version of the PROMIS software by the US Justice Department and its subsequent passage to Canada. This is in response to a letter sent on February 26, 1991, in which the committee asked Canadian Ambassador Derek Burney for help determining what version of the software the Canadian government was using. The official, Jonathan Fried, counselor for congressional and legal affairs at Canada’s Washington embassy, says that “Canadians had been burned once before by Congress,” and imposes conditions on Congressional questioning of Canadian officials. The conditions are that interviews of individuals be conducted only in the presence of lawyers for the relevant departments and their superiors and that no Canadian public servants would be witnesses in any foreign investigative proceedings. The committee accepts these conditions in mid-March, and identifies the two Canadian officials it wants to speak to (see November 1990 and January 1991). [US Congress, 9/10/1992]

Entity Tags: Derek Burney, Jonathan Fried, House Judiciary Committee

Timeline Tags: Inslaw and PROMIS

Shortly before the US House Judiciary Committee interviews two Canadian officials who have said Canada has the allegedly stolen PROMIS software (see November 1990 and January 1991), the Canadian government contacts the committee and imposes a further condition on the interviews. The Canadians had already insisted the officials be accompanied by minders (see Shortly After February 26, 1991), but now says that, in addition, they will only answer questions specifically related to the software. They will not answer questions about any allegations that four software programs that may have been acquired by the Canadian government may be derivates of the PROMIS software. If the committee wants information about such alleged derivatives, it will have to submit a written request. [US Congress, 9/10/1992]

Entity Tags: House Judiciary Committee

Timeline Tags: Inslaw and PROMIS

Two Canadian officials who had previously said that the Canadian government was using Inslaw’s PROMIS software now tell the US House Judiciary Committee that it is not. In an interview with the committee, officials Denis LaChance and Marc Valois of the Canadian Department of Communications say that they had incorrectly identified software used by the Canadians as being Inslaw’s PROMIS (see November 1990 and January 1991), whereas in fact it was actually project management software from a company called the Strategic Software Planning Corporation that is also called PROMIS. Despite an objection by the Canadians to them being asked about PROMIS derivatives in Canada (see Before March 22, 1991), the two officials also say they do not use or know of a derivative of Inslaw’s PROMIS in Canada. The president of the Strategic Software Planning Corporation will later acknowledge in a sworn statement to committee investigators that his company had sold a few copies of his firm’s PROMIS software to the Canadian government in May 1986. [US Congress, 9/10/1992]

Entity Tags: Denis LaChance, House Judiciary Committee, Marc Valois, Department of Communications (Canada)

Timeline Tags: Inslaw and PROMIS

The US Court of Appeals for the District of Columbia reverses two rulings in favor of Inslaw in the dispute over enhanced PROMIS software, following an appeal by the Justice Department (see October 12, 1990). The rulings had been issued by Bankruptcy Court for the District of Columbia (see September 28, 1987) and the US District Court for the District of Columbia (see November 22, 1989). The reversal is granted on what a House Judiciary Committee report favorable to Inslaw will call “primarily jurisdictional grounds.” The appeal court says the bankruptcy court was the wrong place to litigate the issues it decided and, in any case, the department has not violated automatic stay bankruptcy provisions. However, the appeal court notes that both lower courts found that the department had “fraudulently obtained and then converted Enhanced PROMIS to its own use,” and that “such conduct, if it occurred, is inexcusable.” [US Congress, 9/10/1992]

Entity Tags: House Judiciary Committee, Inslaw, Inc., US Court of Appeals for the District of Columbia, US Department of Justice

Timeline Tags: Inslaw and PROMIS

Ari Ben-Menashe, a former Israeli intelligence employee, provides a sworn statement to the House Judiciary Committee on the PROMIS affair. He had previously said he would only tell what he knows under conditions (see February 6, 1991), but now waives this demand. Ben-Menashe says under oath that, in 1982, businessman Earl Brian and Robert McFarland, a former director of the National Security Council, provided the public domain version of PROMIS software to the Israeli government’s special intelligence operation Defense Forces. (This version was owned by the Justice Department; correspondence indicates the department provided a version of the software to Israel in 1983—see May 6, 1983 and May 12, 1983). Ben-Menashe also alleges he was present in 1987 when Brian sold an enhanced version of the software (which would have been owned by Inslaw) to the Israeli intelligence community and the Singapore armed forces and that, after these sales were completed, approximately $5.5 million was placed in a foreign bank account to which Brian had access. He also says that Brian sold the public domain version of PROMIS to military intelligence organizations in Jordan in 1983 and to the Iraqi government in 1987, a transaction brokered by a businessman named Carlos Cardoen. Ben-Menashe further claims that he has information about the sale of a public domain version of PROMIS by Israel to the Soviet Union in 1986, and the sale of the enhanced version to the Canadian government coordinated by Brian. Ben-Menashe states that various unnamed Israeli officials would corroborate his statements, but refuses to identify these officials or provide evidence to corroborate his statements unless he is called as an official witness for the committee under a grant of immunity. The committee decides not to grant immunity and will include these claims in a section of its report that merely states what witnesses told it, without endorsing their claims. [US Congress, 9/10/1992] Ben-Menashe will go on to be involved in numerous major and minor international scandals, picking up a chequered reputation for honesty. [New Statesman, 2/25/2002]

Entity Tags: Ari Ben-Menashe, House Judiciary Committee

Timeline Tags: Inslaw and PROMIS

Following an adverse ruling in an appeals court, Inslaw files an appeal for a writ of certiorari to the Supreme Court. If the writ were granted, it would mean the Supreme Court agreed to hear a further appeal in the case. The appeals court had reversed bankruptcy and district court rulings favorable to Inslaw in its dispute with the Justice Department over the enhanced PROMIS software (see September 28, 1987, November 22, 1989, and May 7, 1991). The application will be denied (see January 13, 1992). [US Congress, 9/10/1992]

Entity Tags: Inslaw, Inc., US Supreme Court, US Department of Justice

Timeline Tags: Inslaw and PROMIS

A judge hearing the PROMIS case for the Department of Transportation Board of Contract Appeals (DOTBCA) says that findings by the Bankruptcy Court for the District of Columbia and the US District Court for the District of Columbia have left a “cloud” over the Justice Department. The two courts originally found for Inslaw (see September 28, 1987 and November 22, 1989), which is in dispute with the department over an enhanced version of the PROMIS software, but these rulings were overturned on appeal, mostly on jurisdictional grounds (see May 7, 1991). At a hearing, counsel for the department says, “I think those trials speak for themselves, and every order has been vacated.” However, the judge responds: “There is one problem. The fact that a judge or a court doesn’t have jurisdiction doesn’t mean that the court is completely ignorant. True, Mr. Bason [the bankruptcy court judge] and Mr. Bryant [the judge that heard the initial appeal] did not have jurisdiction, but they did make some very serious findings on the basis of sworn testimony. They had been truly vacated, and it may be that all the statutes to run have run and they can’t go anywhere. Those cases may be dead forever. But it has left a cloud over the respondent [the department].” The House Judiciary Committee will comment: “As the DOTBCA judge concluded, there definitely remains a cloud over the department’s handling of Inslaw’s proprietary software. Department officials should not be allowed to avoid accountability through a technicality or a jurisdiction ruling by the Appeals Court.” [US Congress, 9/10/1992]

Entity Tags: idateasiapi, House Judiciary Committee, Inslaw, Inc., US Department of Justice

Timeline Tags: Inslaw and PROMIS

The US Supreme Court denies an application for a writ of certiorari made by Inslaw, meaning that the court will not hear its case. The application had been filed the previous year (see October 9, 1991), as Inslaw wanted to overturn an adverse ruling by an appeals court in its dispute with the Justice Department over the alleged theft of enhanced PROMIS software (see May 7, 1991). [US Congress, 9/10/1992]

Entity Tags: Inslaw, Inc., US Supreme Court, US Department of Justice

Timeline Tags: Inslaw and PROMIS

The Government Accountability Office (GAO) releases a study of the Office of Professional Responsibility (OPR) called “Employee Misconduct: Justice Should Clearly Document Investigative Actions.” The report is drafted at the request of the House Government Information, Justice, and Agriculture Subcommittee. The GAO finds that:
bullet OPR operates informally, does not routinely document key aspects of its investigations, and provides little background information in its case documentation;
bullet OPR generally does not record the complete scope of and rationale behind its investigations, or of the decisions reached in the course of its investigations;
bullet OPR’s conclusions that allegations are or are not substantiated are generally not explained;
bullet In many instances, OPR does not pursue all available avenues of inquiry;
bullet OPR counsel rely on an attorney’s judgment and informal consulting among attorneys within OPR as the basis for making decisions and reaching conclusions about specific investigations.
The GAO concludes that these failings expose the OPR and the department to a range of risks, such as if OPR’s informality led it to conclude an investigation prematurely, the department’s integrity could be compromised. In addition, if asked to defend an investigation against a charge that it was not aggressively pursued, OPR probably would not have sufficient documentation to do so. A review of the quality of an investigation based on the documentation would yield little information. Therefore, the GAO recommends that OPR:
bullet Establish basic standards for conducting its investigations;
bullet Establish case documentation standards;
bullet Follow up more consistently on the results of misconduct investigations done by other units and what disciplinary actions, if any, are taken as a result of all misconduct investigations. [US Congress, 9/10/1992]

Entity Tags: Government Accountability Office, Subcommittee on Government Information, Justice, and Agriculture, Office of Professional Responsibility, US Department of Justice

Timeline Tags: Civil Liberties, Misc Entries

The Justice Department issues a 187-page report clearing department officials of wrongdoing in the Inslaw affair, which concerned the alleged misappropriation of an enhanced version of PROMIS software. According to a department press release, “there is no credible evidence that department officials conspired to steal computer software developed by Inslaw, Inc. or that the company is entitled to additional government payments.” This concurs with a previous report by Nicolas Bua, a special counsel appointed by the department. The main points of the report are:
bullet The use of PROMIS by the Executive Office of United States Attorneys and in US attorneys’ offices conforms with contractual agreements, and Inslaw is not entitled to additional compensation for the use of its PROMIS software;
bullet No independent counsel should be appointed and the matter should be closed;
bullet The investigative journalist Danny Casolaro, who died while investigating the Inslaw affair and other issues, committed suicide;
bullet MIT professor Dr. Randall Davis was hired to compare the computer code in Inslaw’s PROMIS software with the code in the FBI’s FOIMS software, which Inslaw claimed was a pirated version of PROMIS. Davis concluded that there was no relation between FOIMS and PROMIS;
bullet Two of the people who made allegations about the distribution of PROMIS outside the Justice Department, Michael Riconosciuto and Ari Ben-Menashe, are untrustworthy. The departmental press release calls them “primary sources relied on by Inslaw”;
bullet None of the anonymous sources that had previously been reported to have made statements supportive of Inslaw came forward, despite assurances from Attorney General Janet Reno that they would be protected from reprisals. The press release says, “Individuals who were identified as sources denied making the statements attributed to them by Inslaw”;
bullet The department did not obstruct the reappointment of bankruptcy Judge George Bason, who ruled in favour of Inslaw (see September 28, 1987, November 24, 1987, December 8, 1987, December 15, 1987, and January 12, 1988);
bullet No documents related to the matter have been destroyed by the Justice Department command center;
bullet There is no credible evidence that Inslaw’s PROMIS is being used elsewhere in the government (see 1982-1984, December 11, 1990, and May 2008), or has been improperly distributed to a foreign government or entity (see May 6, 1983, May 12, 1983, November 1990, and January 1991);
bullet PROMIS was not stolen to raise money to reward people working for the release of American hostages in Iran, to penetrate foreign intelligence agencies, as part of a US-Israeli slush fund connected with the late British publisher Robert Maxwell, or in aid of a secret US intelligence agency concealed within the Office of Special Investigations Nazi-hunting unit. [US Department of Justice, 9/27/1994]

Entity Tags: George Bason, Daniel Casolaro, Inslaw, Inc., Randall Davis, US Department of Justice

Timeline Tags: Inslaw and PROMIS

The US Senate ratifies the international Convention Against Torture, originally proposed by the United Nations in 1985. The treaty bans any officials from signatory nations from inflicting “torture and other cruel, inhuman, or degrading treatment or punishment” on prisoners in order to gain information. It also establishes the UN Committee against Torture (UNCAT). The ban is absolute and cannot be waived: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture.” [United Nations High Commissioner for Human Rights, 12/10/1984; Savage, 2007, pp. 155] The treaty also forbids signatory nations from sending detainees to other countries if there is a reasonable expectation that they may be tortured. [United Nations High Commissioner for Human Rights, 12/10/1984; Human Rights Web, 1/25/1997]

Entity Tags: United Nations Committee against Torture, Convention Against Torture, United Nations

Timeline Tags: Civil Liberties

Law professor John Yoo writes a lengthy essay for the California Law Review entitled “The Continuation of Politics by Other Means: The Original Understanding of War Powers,” in which he argues that the Founding Fathers intended to empower presidents to launch wars without Congressional permission. Yoo has clerked for conservative judge Laurence Silberman and equally conservative Supreme Court Justice Clarence Thomas, and served for a year as counsel to then-Senate Judiciary Committee Chairman Orrin Hatch (R-UT). He has become a regular speaker at Federalist Society events, the informal but influential group of conservative lawyers, judges, and legal scholars who will come to have so much influence in the Bush administration. You argues that for generations, Constitutional scholars have misread the Constitution: the Founders actually supported, not repudiated, the British model of executive power that gave the king the sole power of declaring war and committing forces to battle. The Constitution’s granting of the legislature—Congress—the power to “declare war” is merely, Yoo writes, a reference to the ceremonial role of deciding whether to proclaim the existence of a conflict as a diplomatic detail. The Founders always intended the executive branch to actually declare and commence war, he writes. Most other Constitutional scholars will dismiss Yoo’s arguments, citing notes from the Constitutional Convention that show the Founders clearly intended Congress, not the president, to decide whether to commit the country to war. One of those Founders, James Madison, wrote in 1795 that giving a president the unilateral ability to declare war “would have struck, not only at the fabric of the Constitution, but at the foundation of all well organized and well checked governments. The separation of the power of declaring war from that of conducting it, is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.” [Savage, 2007, pp. 80-81] Yoo will go on to join the Bush administration’s Office of Legal Counsel, and write numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002).

Entity Tags: Federalist Society, John C. Yoo

Timeline Tags: Civil Liberties

Judge Christine Miller of the Court of Federal Claims rejects allegations by the software firm Inslaw that the Justice Department illegally stole its enhanced PROMIS software and distributed it. The finding is contained in a 186-page opinion issued by Miller that says there is “no merit to the claims.” The decision follows a three-week trial. The matter was sent to the court by Congress, which referred the case as a part of considerations about whether to pass a private bill to compensate Inslaw. The original contract required Inslaw to install in US attorneys’ offices a public domain version of PROMIS owned by the government. But, according to Miller, without notice to the government, Inslaw installed a different version of the software and then asserted that the government could not use the software in other offices. (Note: the contract was signed in March 1982 (see March 1982), and Inslaw notified the department of the enhancements on April 2 (see April 2, 1982).) Miller’s findings are:
bullet Inslaw has not shown it has any ownership rights to the software and that the enhancements it claims are not proprietary to it. Miller says that some of the enhancements do actually exist—12 of the over 100 Inslaw says it made—but Inslaw cannot demonstrate it owns them;
bullet Neither has Inslaw shown that the department acted improperly in any way in connection with the software, as it had unlimited rights to the enhanced software it received and acted in good faith;
bullet Inslaw’s decision to take its case to the bankruptcy court, rather than courts with certain jurisdiction to hear it, was a tactical one (see June 9, 1986);
bullet A panel of independent experts appointed by the judge to review other software applications Inslaw claims are pirated versions of PROMIS found that Inslaw’s allegations were false;
bullet In addition to not having a legal claim against the US, Inslaw does not have an equitable claim either, because it did not own the software and the Justice Department acted properly.
Assistant Attorney General Frank Hunger, head of the civil division, comments: “Both parties benefit from having a decision from a court with authority to resolve the matter—a court that has heard all the evidence. And the public benefits because all the evidence has been aired and they can be confident that the facts have finally been revealed. Certainly, the department benefits from the lifting of the cloud that has hung over it for a decade.” As the court investigated the matter at the request of Congress, the decision will be sent back there, although Inslaw will have the chance to appeal the matter to a three-judge panel at the same court beforehand. [US Department of Justice, 8/4/1997]

Entity Tags: Inslaw, Inc., Frank Hunger, Christine Miller, Court of Federal Claims, US Department of Justice

Timeline Tags: Inslaw and PROMIS

The US enacts a law banning torture or abuse by any government official or employee. Title 18 of the US Code, Chapter 113C, Section 2340 bans US officials anywhere in the world from intentionally inflicting “severe physical or mental pain or suffering” upon another person in their control. Violation of this statute would earn the convicted official up to 20 years in prison; if a detainee dies as a result of the abuse, the convicted official can be sentenced to death. Any American official who conspires to have a prisoner abused is subject to the same penalties. [Legal Information Institute, 1/26/1998; Savage, 2007, pp. 155]

Timeline Tags: Torture of US Captives

President Bush (below television screen) meeting with the National Security Council in a bunker below the White House. In the far row from left to right, are Attorney General Ashcroft, President Bush, Chief of Staff Card, CIA Director Tenet, and counterterrorism “tsar” Ckarke. In the near row, Secretary of State Powell can be seen waving his hand, and National Security Advisor Rice sits to his right.President Bush (below television screen) meeting with the National Security Council in a bunker below the White House. In the far row from left to right, are Attorney General Ashcroft, President Bush, Chief of Staff Card, CIA Director Tenet, and counterterrorism “tsar” Ckarke. In the near row, Secretary of State Powell can be seen waving his hand, and National Security Advisor Rice sits to his right. [Source: Eric Draper/ White House]President Bush meets with his full National Security Council. According to journalist Bob Woodward, this meeting turns out to be “unwieldy.” So at 9:30 p.m., Bush follows it with a meeting with a smaller group of his most senior principal national security advisers in the Presidential Emergency Operations Center (PEOC) beneath the White House. Bush and his advisers have already decided bin Laden is behind the attacks. As the president later recalls, in these meetings, “That’s when we first got the indication… we’ve identified, we think it’s al-Qaeda.” He says the FBI now thinks that “it’s al-Qaeda, and we start to develop our plans to get them. I mean, there wasn’t any hesitation. We’re starting the process of coalition-building and how to get ‘em.” (According to other accounts, though, the CIA had informed Bush hours earlier that it was virtually certain al-Qaeda was to blame for the attacks (see (3:15 p.m.) September 11, 2001).) CIA Director George Tenet says that al-Qaeda and the Taliban in Afghanistan are essentially one and the same. Tenet says, “Tell the Taliban we’re finished with them.” [Sammon, 2002, pp. 133; Woodward, 2002, pp. 31-33; Washington Post, 1/27/2002] The president says, “I want you all to understand that we are at war and we will stay at war until this is done. Nothing else matters. Everything is available for the pursuit of this war. Any barriers in your way, they’re gone. Any money you need, you have it. This is our only agenda.” When, later in the discussion, Defense Secretary Donald Rumsfeld points out that international law only allows force to prevent future attacks and not for retribution, Bush yells, “No. I don’t care what the international lawyers say, we are going to kick some ass.” [Clarke, 2004, pp. 23-24] Bush will subsequently announce a new US doctrine of preemptive attack the following June (see June 1, 2002). [Time, 6/23/2002] During the meeting, the president refers to the present political situation as a “great opportunity” (see (Between 9:30 p.m. and 10:00 p.m.) September 11, 2001). By the time the meeting ends, it is after 10 p.m. [Sammon, 2002, pp. 133]

Entity Tags: Osama bin Laden, Taliban, National Security Council, Richard A. Clarke, George W. Bush, Donald Rumsfeld, Al-Qaeda, George J. Tenet, Condoleezza Rice

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

The US Congress adopts a joint resolution, the Authorization for Use of Military Force (AUMF), that determines that “the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Congress also states that the “grave acts of violence” committed on the US “continue to pose an unusual and extraordinary threat to [its] national security and foreign policy.” [US Congress, 9/14/2001] President Bush signs the resolution into law on September 18. [White House, 9/18/2001] The passage of the AUMF served another purpose: to extend presidential power. While the Defense Department and the Joint Chiefs of Staff intended the AUMF to define the conflict in narrow terms, and authorize the US to move militarily against al-Qaeda and its confederates, and the Taliban, Vice President Dick Cheney and his chief of staff, David Addington, had a larger goal. Attorney Scott Horton, who has written two major studies on interrogation of terrorism suspects for the New York City Bar Association, says in 2005 that Cheney and Addington “really wanted [the AUMF defined more broadly], because it provided the trigger for this radical redefinition of presidential power.” Addington helped draft a Justice Department opinion in late 2001, written by lawyer John Yoo (see Late September 2001), that asserted Congress cannot “place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.” [US News and World Report, 5/21/2006]

Entity Tags: US Department of Defense, Taliban, Scott Horton, Joint Chiefs of Staff, Richard (“Dick”) Cheney, David S. Addington, George W. Bush, John C. Yoo, Al-Qaeda, Authorization to Use Military Force (AUMF)

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Bradford Berenson.Bradford Berenson. [Source: PBS]In the weeks following 9/11, government lawyers begin to formulate a legal response to the newly perceived threat of terrorism. Four related issues are at hand: forceful prevention, detention, prosecution, and interrogation. What degree of force can the government employ to prevent acts of terrorism or apprehend suspected terrorists? How and where can it best detain terrorists if captured? How can it best bring them to trial? And how can it best obtain information from them on terrorist organizations and plots? These questions are handled in a new atmosphere that is more tolerant towards flexible interpretations of the law. Bradford Berenson, an associate White House counsel at this time, later recalls: “Legally, the watchword became ‘forward-leaning’ by which everybody meant: ‘We want to be aggressive. We want to take risks.’” [New York Times, 10/24/2004] This attitude is seemingly in line with the president’s thinking. Counterterrorism “tsar” Richard Clarke will later recall President Bush saying, “I don’t care what the international lawyers say. We are going to kick some ass” (see (9:00 p.m.-10:00 p.m.) September 11, 2001). [Clarke, 2004, pp. 23-24] At the center of legal reconstruction work are Alberto R. Gonzales, the White House counsel, his deputy Timothy E. Flanigan, and David S. Addington, legal counsel to Vice President Cheney. [New York Times, 12/19/2004] They will find a helpful hand in the Justice Department’s Office of Legal Counsel (OLC), most notably its head, Assistant Attorney General Jay S. Bybee [Los Angeles Times, 6/10/2004] and his deputies John C. Yoo [New York Times, 8/15/2004] and Patrick F. Philbin. Most of the top government lawyers dwell in fairly conservative circles, with many being a member of the Federalist Society, a conservative legal fraternity. Some have clerked for conservative Supreme Court Justices Antonin Scalia and Clarence Thomas, whose ruling effectively lead to the presidency being awarded to George W. Bush after the 2000 presidential election. [New York Times, 10/24/2004] Others worked for Judge Lawrence H. Silberman, who set up secret contacts with the Iranian government under President Reagan leading to the Iran-Contra scandal, and who advised on pursuing allegations of sexual misconduct by President Clinton. [Inter Press Service, 2/6/2004]

Entity Tags: Patrick F. Philbin, Richard A. Clarke, John C. Yoo, Joan Claybrook, Alberto R. Gonzales, Bradford Berenson, Jay S. Bybee, Alan M. Dershowitz, Rena Steinzor

Timeline Tags: Torture of US Captives, Civil Liberties

The Geneva Conventions are mentioned in a memo issued the day after the publication of the Heritage Foundation paper (see November 5, 2001), but only to suggest that suspected terrorists should not be entitled to the rights enclosed in them. Patrick F. Philbin, a deputy in the OLC, sends a confidential 35-page memo to the White House legal counsel Gonzales, arguing that the president, as Commander-in-Chief, has “inherent authority” to establish military commissions without authorization from the US Congress. The 9/11 attacks are themselves “plainly sufficient” to justify the application of the laws of war. Furthermore, putting terrorists on trial under the laws of war, “does not mean,” according to Philbin, “that terrorists will receive the protections of the Geneva Conventions or the rights that laws of war accord to lawful combatants.” The Philbin memo will serve as a basis for a Presidential order (see November 13, 2001) establishing the option of military commissions, which will be drafted by Deputy White House Counsel Timothy E. Flanigan and David S. Addington, the legal counsel to Vice President Cheney. [New York Times, 10/24/2004]

Entity Tags: Patrick F. Philbin, Alberto R. Gonzales

Timeline Tags: Torture of US Captives

Deputy Assistant Attorney Generals Patrick Philbin and John Yoo send a memorandum to Pentagon General Counsel William J. Haynes offering the legal opinion that US courts do not have jurisdiction to review the detention of foreign prisoners at Guantanamo Bay. Therefore detentions of persons there cannot be challenged in a US court of law. The memo is endorsed by the Department of Defense and White House legal counsel Alberto Gonzales. [Newsweek, 5/24/2004] The memo addresses “the question whether a federal district court would properly have jurisdiction to entertain a petition for a writ of habeas corpus filed on behalf of an alien detained at the US naval base at Guantanamo Bay, Cuba.” The conclusion of Philbin and Yoo is that it cannot, based primarily on their interpretation of a decision by the US Supreme Court in the 1950 Eisentrager case, in which the Supreme Court determined that no habeas petition should be honored if the prisoners concerned are seized, tried, and held in territory that is outside of the sovereignty of the US and outside the territorial jurisdiction of any court of the US. Both conditions apply to Guantanamo according to Philbin and Yoo. Approvingly, they quote the US Attorney General in 1929, who stated that Guantanamo is “a mere governmental outpost beyond our borders.” A number of cases, quoted by the authors, “demonstrate that the United States has consistently taken the position that [Guantanamo Bay] remains foreign territory, not subject to US sovereignty.” Guantanamo is indeed land leased from the state of Cuba, and therefore in terms of legal possession and formal sovereignty still part of Cuba. But Philbin and Yoo acknowledge a problem with the other condition: namely that the territory is outside the US’s jurisdiction. They claim with certainty that Guantanamo “is also outside the ‘territorial jurisdiction of any court of the United States.’” However, the Supreme Court should not have made a distinction between jurisdiction and sovereignty here; the wording of the decision is really, Philbin and Yoo believe, an inaccurate reflection of its intent: “an arguable imprecision in the Supreme Court’s language.” For that reason, they call for caution. “A non-frivolous argument might be constructed, however, that [Guantanamo Bay], while not be part of sovereign territory of the United States, is within the territorial jurisdiction of a federal court.” [US Department of Justice, 12/28/2001 pdf file]

Entity Tags: John C. Yoo, Alberto R. Gonzales, Patrick F. Philbin, William J. Haynes

Timeline Tags: Torture of US Captives, Civil Liberties

John Yoo, a neoconservative lawyer in the Justice Department’s Office of Legal Counsel serving as deputy assistant attorney general, writes a classified memo to senior Pentagon counsel William J. Haynes, titled “Application of Treaties and Law to al-Qaeda and Taliban Detainees.” [New York Times, 5/21/2004]
Yoo: Geneva Conventions Do Not Apply in War on Terror - Yoo’s memo, written in conjunction with fellow Justice Department lawyer Robert Delahunty, echoes arguments by another Justice Department lawyer, Patrick Philbin, two months earlier (see November 6, 2001). Yoo states that, in his view, the laws of war, including the Geneva Conventions, do not apply to captured Taliban or al-Qaeda prisoners, nor do they apply to the military commissions set up to try such prisoners.
Geneva Superseded by Presidential Authority - Yoo’s memo goes even farther, arguing that no international laws apply to the US whatsoever, because they do not have any status under US federal law. “As a result,” Yoo and Delahunty write, “any customary international law of armed conflict in no way binds, as a legal matter, the president or the US armed forces concerning the detention or trial of members of al-Qaeda and the Taliban.” In essence, Yoo and Delahunty argue that President Bush and the US military have carte blanche to conduct the global war on terrorism in any manner they see fit, without the restrictions of law or treaty. However, the memo says that while the US need not follow the rules of war, it can and should prosecute al-Qaeda and Taliban detainees for violating those same laws—a legal double standard that provokes sharp criticism when the memo comes to light in May 2004 (see May 21, 2004). Yoo and Delahunty write that while this double standard may seem “at first glance, counter-intuitive,” such expansive legal powers are a product of the president’s constitutional authority “to prosecute the war effectively.” The memo continues, “Restricting the president’s plenary power over military operations (including the treatment of prisoners)” would be “constitutionally dubious.” [Mother Jones, 1/9/2002; US Department of Justice, 6/9/2002 pdf file; Newsweek, 5/21/2004; New York Times, 5/21/2004]
Overriding International Legal Concerns - Yoo warns in the memo that international law experts may not accept his reasoning, as there is no legal precedent giving any country the right to unilaterally ignore its commitment to Geneva or any other such treaty, but Yoo writes that Bush, by invoking “the president’s commander in chief and chief executive powers to prosecute the war effectively,” can simply override any objections. “Importing customary international law notions concerning armed conflict would represent a direct infringement on the president’s discretion as commander in chief and chief executive to determine how best to conduct the nation’s military affairs.” [Savage, 2007, pp. 146] The essence of Yoo’s argument, a Bush official later says, is that the law “applies to them, but it doesn’t apply to us.” [Newsweek, 5/21/2004] Navy general counsel Alberto Mora later says of the memo that it “espoused an extreme and virtually unlimited theory of the extent of the president’s commander-in-chief authority.” [Savage, 2007, pp. 181]
White House Approval - White House counsel and future Attorney General Alberto Gonzales agrees (see January 25, 2002), saying, “In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” [Mother Jones, 1/9/2002]
Spark for Prisoner Abuses - Many observers believe that Yoo’s memo is the spark for the torture and prisoner abuses later reported from Iraq’s Abu Ghraib prison (see Evening November 7, 2003), Guantanamo Bay (see December 28, 2001), and other clandestine prisoner detention centers (see March 2, 2007). The rationale is that since Afghanistan is what Yoo considers a “failed state,” with no recognizable sovereignity, its militias do not have any status under any international treaties. [Newsweek, 5/21/2004; Newsweek, 5/24/2004]
Resistance from Inside, Outside Government - Within days, the State Department will vehemently protest the memo, but to no practical effect (see January 25, 2002).

Entity Tags: Patrick F. Philbin, Robert J. Delahunty, US Department of Justice, Office of Legal Counsel (DOJ), Taliban, John C. Yoo, Colin Powell, Geneva Conventions, Al-Qaeda, George W. Bush, Alberto Mora, US Department of State, Alberto R. Gonzales, William J. Haynes

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

William Howard Taft IV.William Howard Taft IV. [Source: PBS]William Howard Taft IV, the State Department’s chief legal adviser, responds to John Yoo’s January 9,2002, memo (see January 9, 2002) saying that Yoo’s analysis is “seriously flawed.” Taft writes: “In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the [Geneva] Conventions. I have no doubt we can do so here, where a relative handful of persons is involved.” [Newsweek, 5/24/2004] Applying the Geneva Conventions, according to Taft, would demonstrate that the United States “bases its conduct on its international legal obligations and the rule of law, not just on its policy preferences.” Taft ends with a scorching criticism. “Your position is, at this point, erroneous in its substance and untenable in practice. Your conclusions are as wrong as they are incomplete. Let’s talk.” [Le Monde (Paris), 10/25/2004]

Entity Tags: William Howard Taft IV, John C. Yoo

Timeline Tags: Torture of US Captives, Civil Liberties

Siding with the Pentagon and Justice Department against the State Department, President Bush declares the Geneva Conventions invalid with regard to conflicts with al-Qaeda and the Taliban. Secretary of State Colin Powell urges Bush to reconsider, saying that while Geneva does not apply to al-Qaeda terrorists, making such a decision for the Taliban—the putative government of Afghanistan—is a different matter. Such a decision could put US troops at risk. Both Defense Secretary Donald Rumsfeld and Joint Chiefs chairman General Richard B. Myers support Powell’s position. Yet another voice carries more weight with Bush: John Yoo, a deputy in the Justice Department’s Office of Legal Counsel (OLC—see October 23, 2001). Yoo says that Afghanistan is a “failed state” without a functional government, and Taliban fighters are not members of an army as such, but members of a “militant, terrorist-like group” (see January 9, 2002). White House counsel Alberto Gonzales agrees with Yoo in a January 25 memo, calling Yoo’s opinion “definitive.” The Gonzales memo concludes that the “new kind of war” Bush wants to fight should not be equated with Geneva’s “quaint” privileges granted to prisoners of war, or the “strict limitations” they impose on interrogations (see January 25, 2002). Military lawyers dispute the idea that Geneva limits interrogations to recitals of name, rank, and serial number, but their objections are ignored. For an OLC lawyer to override the judgment of senior Cabinet officials is unprecedented. OLC lawyers usually render opinions on questions that have already been deliberated by the legal staffs of the agencies involved. But, perhaps because OLC lawyers like Yoo give Bush the legal opinions he wants, Bush grants that agency the first and last say in matters such as these. “OLC was definitely running the show legally, and John Yoo in particular,” a former Pentagon lawyer will recall. “Even though he was quite young, he exercised disproportionate authority because of his personality and his strong opinions.” Yoo is also very close to senior officials in the office of the vice president and in the Pentagon’s legal office. [Ledger (Lakeland FL), 10/24/2004]
Undermining, Cutting out Top Advisers - Cheney deliberately cuts out the president’s national security counsel, John Bellinger, because, as the Washington Post will later report, Cheney’s top adviser, David Addington, holds Bellinger in “open contempt” and does not trust him to adequately push for expanded presidential authority (see January 18-25, 2002). Cheney and his office will also move to exclude Secretary of State Colin Powell from the decision-making process, and, when the media learns of the decision, will manage to shift some of the blame onto Powell (see January 25, 2002). [Washington Post, 6/24/2007]
Final Decision - Bush will make his formal final declaration three weeks later (see February 7, 2002).

Entity Tags: US Department of Defense, US Department of Justice, Richard B. Myers, US Department of State, Taliban, Office of Legal Counsel (DOJ), John C. Yoo, Alberto R. Gonzales, Richard (“Dick”) Cheney, Colin Powell, Al-Qaeda, Condoleezza Rice, Donald Rumsfeld, John Bellinger, George W. Bush, Geneva Conventions, David S. Addington

Timeline Tags: Torture of US Captives, Civil Liberties

White House lawyer Alberto Gonzales completes a draft memorandum to the president advising him not to reconsider his decision (see January 18-25, 2002) declaring Taliban and al-Qaeda fighters ineligible for prisoner of war status as Colin Powell has apparently recommended. [US Department of Justice, 1/25/2004 pdf file; Newsweek, 5/24/2004] The memo recommends that President Bush accept a recent Office of Legal Counsel (OLC) memo saying that the president has the authority to set aside the Geneva Conventions as the basis of his policy (see January 9, 2002). [Savage, 2007, pp. 146]
Geneva No Longer Applies, Says Gonzales - Gonzales writes to Bush that Powell “has asked that you conclude that GPW [Third Geneva Convention] does apply to both al-Qaeda and the Taliban. I understand, however, that he would agree that al-Qaeda and the Taliban fighters could be determined not to be prisoners of war (POWs) but only on a case-by-case basis following individual hearings before a military board.” Powell believes that US troops will be put at risk if the US renounces the Geneva Conventions in relation to the Taliban. Rumsfeld and his chairman of the Joint Chiefs of Staff, Gen. Richard B. Myers, allegedly agree with Powell’s argument. [New York Times, 10/24/2004] But Gonzales says that he agrees with the Justice Department’s Office of Legal Counsel, which has determined that the president had the authority to make this declaration on the premise that “the war against terrorism is a new kind of war” and “not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW [Geneva Convention on the treatment of prisoners of war].” Gonzales thus states, “In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” [Newsweek, 5/24/2004] Gonzales also says that by declaring the war in Afghanistan exempt from the Geneva Conventions, the president would “[s]ubstantially [reduce] the threat of domestic criminal prosecution under the War Crimes Act [of 1996]” (see August 21, 1996). The president and other officials in the administration would then be protected from any future “prosecutors and independent counsels who may in the future decide to pursue unwarranted charges.” [New York Times, 5/21/2004; Newsweek, 5/24/2004]
Memo Actually Written by Cheney's Lawyer - Though the memo is released under Gonzales’s signature, many inside the White House do not believe the memo was written by him; it has an unorthodox format and a subtly mocking tone that does not go with Gonzales’s usual style. A White House lawyer with direct knowledge of the memo later says it was written by Cheney’s chief lawyer, David Addington. Deputy White House counsel Timothy Flanigan passed it to Gonzales, who signed it as “my judgment” and sent it to Bush. Addington’s memo quotes Bush’s own words: “the war against terrorism is a new kind of war.” [Washington Post, 6/24/2007]
Powell 'Hits the Roof' over Memo - When Powell reads the memo (see January 26, 2002), he reportedly “hit[s] the roof” and immediately arranges for a meeting with the president (see January 25, 2002). [Newsweek, 5/24/2004]

Entity Tags: George W. Bush, Office of Legal Counsel (DOJ), Geneva Conventions, Alberto R. Gonzales, Colin Powell, David S. Addington, Al-Qaeda, Taliban, Richard B. Myers

Timeline Tags: Torture of US Captives, Civil Liberties

Abu Zubaida injured, shortly after his arrest. (Note: this picture is from a video presentation on prisoners the Pakistani government gave to BBC filmmakers. It has been adjusted to remove some blue tinge.)Abu Zubaida injured, shortly after his arrest. (Note: this picture is from a video presentation on prisoners the Pakistani government gave to BBC filmmakers. It has been adjusted to remove some blue tinge.) [Source: BBC's "The New Al-Qaeda."]After al-Qaeda leader Abu Zubaida is captured on March 28, 2002 (see March 28, 2002), the CIA takes control of his detention and interrogation, but there is no legal clarity over just how aggressive his interrogation can be for several months. [Tenet, 2007, pp. 241] Thereforem the CIA asks the White House “what the legal limits of interrogation are,” according to Justice Department lawyer John Yoo. [Washington Post, 6/25/2007] CIA Director George Tenet will write in his 2007 book: “Now that we had an undoubted resource in our hands—the highest-ranking al-Qaeda official captured to date—we opened discussions within the National Security Council as to how to handle him, since holding and interrogating large numbers of al-Qaeda operatives had never been part of our plan.… We wondered what we could legitimately do to get that information. Despite what Hollywood might have you believe, in situations like this you don’t call in the tough guys, you call in the lawyers. It took until August to get clear guidance on what Agency officers could legally do.” [Tenet, 2007, pp. 241] This is a reference to an August 1, 2002 Justice Department memo legally justifying the use of some interrogations generally deemed to be torture (see August 1, 2002). But it appears Zubaida was subjected to the most extreme interrogation methods the US used, such as waterboarding, well before August 2002 (see Mid-May 2002 and After). However, during this period of uncertainty and into 2003, the CIA gets advice from Michael Chertoff, head of the Justice Department’s criminal division at the time, about which techniques are likely legal and which ones are not (see 2002-2003).

Entity Tags: Michael Chertoff, Abu Zubaida, George J. Tenet, Central Intelligence Agency, John C. Yoo

Timeline Tags: Torture of US Captives, Complete 911 Timeline

In the days following the capture of al-Qaeda operative Abu Zubaida (see March 28, 2002), a group of top White House officials, the National Security Council’s Principals Committee, begins a series of meetings that result in the authorization of specific torture methods against Zubaida and other detainees. The top secret talks and meetings eventually approve such methods to be used by CIA agents against high-value terrorism suspects. The US media will not learn of this until six years later (see April 9, 2008). The Principals Committee meetings are chaired by National Security Adviser Condoleezza Rice, and attendees include Vice President Dick Cheney, CIA Director George Tenet, Secretary of Defense Donald Rumsfeld, Secretary of State Colin Powell, and Attorney General John Ashcroft. Tenet’s successor, Porter Goss, will also participate in the meetings. Sometimes deputies attend in place of their superiors. Rice’s group not only discusses and approves specific “harsh” methods of interrogation, but also approves the use of “combined” interrogation techniques on suspects who prove recalcitrant. The approved techniques include slapping and shoving prisoners, sleep deprivation, and waterboarding, or simulated drowning, a technique banned for decades by the US military. Some of the discussions of the interrogation sessions are so detailed that the Principals Committee virtually choreographs the sessions down to the number of times CIA agents can use specific tactics. [ABC News, 4/9/2008; Associated Press, 4/10/2008; ABC News, 4/11/2008] The Principals Committee also ensures that President Bush is not involved in the meetings, thereby granting him “deniability” over the decisions, though Bush will eventually admit to being aware of the decisions (see April 11, 2008). The Principals Committee, particularly Cheney, is described by a senior intelligence official as “deeply immersed” in the specifics of the decisions, often viewing demonstrations of how specific tactics work. [Associated Press, 4/10/2008]
Imminent Threat Calls for Extreme Measures - The move towards using harsh and likely illegal interrogation tactics begins shortly after the capture of Zubaida in late March 2002 (see Late March through Early June, 2002 and March 28, 2002). Zubaida is seen as a potentially critical source of information about potential attacks similar to 9/11. He is kept in a secret CIA prison where he recovers from the wounds suffered during his capture, and where he is repeatedly questioned. However, he is allegedly uncooperative with his inquisitors, and CIA officials want to use more physical and aggressive techniques to force him to talk (see March 28, 2002-Mid-2004 and April - June 2002). The CIA briefs the Principals Committee, chaired by Rice, and the committee signs off on the agency’s plan to use more extreme interrogation methods on Zubaida. After Zubaida is waterboarded (see April - June 2002), CIA officials tell the White House that he provided information leading to the capture of two other high-level al-Qaeda operatives, Khalid Shaikh Mohammed (see Shortly After February 29 or March 1, 2003) and Ramzi bin al-Shibh (see Late 2002 and May 2002-2003). The committee approves of waterboarding as well as a number of “combined” interrogation methods, basically a combination of harsh techniques to use against recalcitrant prisoners.
The 'Golden Shield' - The committee asks the Justice Department to determine whether using such methods would violate domestic or international laws. “No one at the agency wanted to operate under a notion of winks and nods and assumptions that everyone understood what was being talked about,” a second senior intelligence official will recall in 2008. “People wanted to be assured that everything that was conducted was understood and approved by the folks in the chain of command.” In August 2002, Justice Department lawyers in the Office of Legal Counsel will write a memo that gives formal legal authority to government interrogators to use harsh, abusive methods on detainees (see August 1, 2002). The memo is called the “Golden Shield” for CIA agents who worry that they could be held criminally liable if the harsh, perhaps tortuous interrogations ever become public knowledge. CIA veterans remember how everything from the Vietnam-era “Phoenix Program” of assassinations to the Iran-Contra arms sales of the 1980s were portrayed as actions of a “rogue,” “out-of-control” CIA; this time, they intend to ensure that the White House and not the agency is given ultimate responsibility for authorizing extreme techniques against terror suspects. Tenet demands White House approval for the use of the methods, even after the Justice Department issues its so-called “Golden Shield” memo explicitly authorizing government interrogators to torture suspected terrorists (see August 1, 2002). Press sources will reveal that Tenet, and later Goss, convey requests for specific techniques to be used against detainees to the committee (see Summer 2003). One high-ranking official will recall: “It kept coming up. CIA wanted us to sign off on each one every time. They’d say: ‘We’ve got so and so. This is the plan.’” The committee approves every request. One source will say of the discussions: “These discussions weren’t adding value. Once you make a policy decision to go beyond what you used to do and conclude it’s legal, [you should] just tell them to implement it.” [ABC News, 4/9/2008; Associated Press, 4/10/2008; ABC News, 4/11/2008] In April 2008, law professor Jonathan Turley will say: “[H]ere you have the CIA, which is basically saying, ‘We’re not going to have a repeat of the 1970s, where you guys have us go exploding cigars and trying to take out leaders and then you say you didn’t know about it.’ So the CIA has learned a lot. So these meetings certainly cover them in that respect.” [MSNBC, 4/10/2008] A former senior intelligence official will say, “If you looked at the timing of the meetings and the memos you’d see a correlation.” Those who attended the dozens of meetings decided “there’d need to be a legal opinion on the legality of these tactics” before using them on detainees. [Associated Press, 4/10/2008]
Ashcroft Uneasy at White House Involvement - Ashcroft in particular is uncomfortable with the discussions of harsh interrogation methods that sometimes cross the line into torture, though his objections seem more focused on White House involvement than on any moral, ethical, or legal problems. After one meeting, Ashcroft reportedly asks: “Why are we talking about this in the White House? History will not judge this kindly.” However, others in the discussions, particularly Rice, continue to support the torture program. Even after Jack Goldsmith, the chief of the Justice Department’s Office of Legal Counsel (OLC), withdraws the “Golden Shield” memo and after Powell begins arguing that the torture program is harming the image of the US abroad, when CIA officials ask to continue using particular torture techniques, Rice responds: “This is your baby. Go do it.”
Reaction after Press Learns of Meetings - After the press learns of the meetings (see April 9, 2008), the only person involved who will comment will be Powell, who will say through an assistant that there were “hundreds of [Principals Committee] meetings” on a wide variety of topics and that he is “not at liberty to discuss private meetings.” [ABC News, 4/9/2008; Associated Press, 4/10/2008; ABC News, 4/11/2008]

Entity Tags: Office of Legal Counsel (DOJ), Porter J. Goss, US Department of Justice, Ramzi bin al-Shibh, Richard (“Dick”) Cheney, Principals Committee, Khalid Shaikh Mohammed, Jack Goldsmith, John Ashcroft, Bush administration (43), Al-Qaeda, Abu Zubaida, Central Intelligence Agency, Colin Powell, Condoleezza Rice, George W. Bush, George J. Tenet, Donald Rumsfeld, Jonathan Turley, National Security Council

Timeline Tags: Torture of US Captives, Civil Liberties

Accused al-Qaeda operative Abu Zubaida, having been tortured for months in a secret CIA prison in Thailand (see April - June 2002), has had a respite from the intensive interrogations he was initially subjected to. Now, though, the interrogations begin again, being what Zubaida will later recall as “more intens[e] than before.”
Intensified Interrogations - Zubaida will later tell officials of the International Committee of the Red Cross (ICRC): “Two black wooden boxes were brought into the room outside my cell. One was tall, slightly higher than me and narrow. Measuring perhaps in area [3 1/2 by 2 1/2 feet by 6 1/2 feet high]. The other was shorter, perhaps only [3 1/2 feet] in height. I was taken out of my cell and one of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room. I was also repeatedly slapped in the face.… I was then put into the tall black box for what I think was about one and a half to two hours. The box was totally black on the inside as well as the outside.… They put a cloth or cover over the outside of the box to cut out the light and restrict my air supply. It was difficult to breathe. When I was let out of the box I saw that one of the walls of the room had been covered with plywood sheeting. From now on it was against this wall that I was then smashed with the towel around my neck. I think that the plywood was put there to provide some absorption of the impact of my body. The interrogators realized that smashing me against the hard wall would probably quickly result in physical injury.”
In the Box - Zubaida will give detailed recollections of his time in the box: “After the beating I was then placed in the small box. They placed a cloth or cover over the box to cut out all light and restrict my air supply. As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant my wounds both in the leg and stomach became very painful. I think this occurred about three months after my last operation. It was always cold in the room, but when the cover was placed over the box it made it hot and sweaty inside. The wound on my leg began to open and started to bleed. I don’t know how long I remained in the small box, I think I may have slept or maybe fainted. I was then dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress. I was then placed again in the tall box. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket with urine tipped over and spilt over me.… I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before. I was then made to sit on the floor with a black hood over my head until the next session of torture began. The room was always kept very cold. This went on for approximately one week. During this time the whole procedure was repeated five times. On each occasion, apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between. On one occasion the suffocation was repeated three times. I vomited each time I was put in the vertical position between the suffocation. During that week I was not given any solid food. I was only given Ensure to drink. My head and beard were shaved everyday. I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor. I was told during this period that I was one of the first to receive these interrogation techniques, so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people.” Author Mark Danner will note that, according to the ICRC report, Zubaida’s impression of being a “guinea pig” is accurate. Some of the techniques used on him will not be reported again—the weeks of sitting in shackles, the coffin-sized boxes. Other techniques, such as the waterboarding, the permanent shackling, the “cold cell,” the incessant loud music and noise, will be used frequently on later captives, as will the constant light and the repeated beatings and physical abuse.
Everything Authorized by Senior CIA, White House Officials - Danner will remind readers that the CIA interrogators never acted alone or with any degree of independence. Everything that is done and said to Zubaida is monitored by other officials on-site—guards, interrogators, doctors—and by senior CIA officials in Washington. CIA interrogator John Kiriakou will later tell a reporter: “It wasn’t up to individual interrogators to decide, ‘Well, I’m gonna slap him. Or I’m going to shake him. Or I’m gonna make him stay up for 48 hours.’ Each one of these steps… had to have the approval of the deputy director for operations. So before you laid a hand on him, you had to send in the cable saying, ‘He’s uncooperative. Request permission to do X.’ And that permission would come.… The cable traffic back and forth was extremely specific. And the bottom line was these were very unusual authorities that the agency got after 9/11. No one wanted to mess them up. No one wanted to get in trouble by going overboard.… No one wanted to be the guy who accidentally did lasting damage to a prisoner.” Danner also notes that shortly after Zubaida’s capture, the CIA briefed top White House officials, including Vice President Dick Cheney, National Security Adviser Condoleezza Rice, and Attorney General John Ashcroft, who, ABC News will later report, “then signed off on the [interrogation] plan” (see April 2002 and After and July 2002). During this time the White House is working with Justice Department officials to produce the so-called “golden shield” memo (see August 1, 2002) that will, supposedly, protect the White House and CIA from criminal charges. Even after the memo’s adoption, CIA Director George Tenet continues to tell top White House officials about the specific procedures being used on Zubaida and other prisoners, including techniques such as waterboarding, to ensure that the White House considered them legal. As ABC will later report, the briefings of principals were so detailed and frequent that “some of the interrogation sessions were almost choreographed.” [New York Review of Books, 3/15/2009]

Entity Tags: John Kiriakou, Abu Zubaida, Al-Qaeda, Central Intelligence Agency, International Committee of the Red Cross, Richard (“Dick”) Cheney, Mark Danner

Timeline Tags: Torture of US Captives

Military lawyers for a detainee believed to be Abu Zubaida (see March 28, 2002) lodge numerous complaints with unidentified White House officials over the torture of their client. Zubaida has been subjected to waterboarding and other abuses by CIA interrogators (see March 28, 2002-Mid-2004, March 28-August 1, 2002, Mid-April-May 2002, Mid-April 2002, and Mid-May 2002 and After). The complaints trigger a hastily arranged meeting between Vice President Cheney, White House counsel Alberto Gonzales, Cheney’s chief counsel David Addington, National Security Adviser Condoleezza Rice, and a number of officials from the Defense and State Departments. The discussion centers on the production of a legal memo specifically for the CIA that would provide retroactive legal immunity for the use of waterboarding and other illegal interrogation methods. According to a subsequent investigation by the Justice Department (see February 22, 2009), the participants in the discussion believe that the methods used against Zubaida are legal because on February 7, 2002, President Bush signed an executive order stating that terrorists were not entitled to protections under the Geneva Conventions (see February 7, 2002). Nevertheless, the participants agree that methods such as waterboarding probably violate international and domestic laws against torture, and therefore the CIA and the Bush administration would both benefit from a legal opinion stating what techniques are legal, and why they do not fit the legal definition of torture. The meeting results in the production of the so-called “Golden Shield” memo (see August 1, 2002). [Public Record, 2/22/2009]

Entity Tags: US Department of State, Bush administration (43), Alberto R. Gonzales, Abu Zubaida, Central Intelligence Agency, US Department of Justice, Condoleezza Rice, Geneva Conventions, David S. Addington, Richard (“Dick”) Cheney, George W. Bush, US Department of Defense

Timeline Tags: Civil Liberties

CIA Director George Tenet meets with National Security Adviser Condoleezza Rice. Rice tells Tenet that the CIA can begin its proposed interrogation plan for captured alleged al-Qaeda operative Abu Zubaida (see March 28, 2002 and July 13, 2002), advising him “that the CIA could proceed with its proposed interrogation” of Zubaida. Rice’s authorization is subject to a determination of legality by the Justice Department’s Office of Legal Counsel (see August 1, 2002). [Senate Intelligence Committee, 4/22/2009 pdf file; BBC, 4/23/2009] The CIA has already begun torturing Zubaida (see April - June 2002, Mid-May, 2002, Mid-May 2002 and After, Mid-May 2002 and After, and June 2002).

Entity Tags: Condoleezza Rice, George J. Tenet, Office of Legal Counsel (DOJ), US Department of Justice, Abu Zubaida, Central Intelligence Agency

Timeline Tags: Torture of US Captives

Jay Bybee.Jay Bybee. [Source: Public domain]The Justice Department’s Office of Legal Counsel (OLC) sends a non-classified memo to White House Counsel Alberto Gonzales, offering the opinion that a policy allowing suspected al-Qaeda members to be tortured abroad “may be justified.” [US Department of Justice, 8/1/2002 pdf file] This memo will later be nicknamed the “Golden Shield” by insiders in the hopes that it will protect government officials from later being charged with war crimes (see April 2002 and After). [ABC News, 4/9/2008]
Multiple Authors - The 50-page “torture memo” is signed and authored by Jay S. Bybee, head of OLC, and co-authored by John Yoo, a deputy assistant attorney general. It is later revealed that Yoo authored the memo himself, in close consultation with Vice President Cheney’s chief adviser David Addington, and Bybee just signed off on it (see December 2003-June 2004). [Washington Post, 6/9/2004] Deputy White House counsel Timothy Flanigan also contributed to the memo. Addington contributed the claim that the president may authorize any interrogation method, even if it is plainly torture. Addington’s reasoning: US and treaty law “do not apply” to the commander in chief, because Congress “may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” [Washington Post, 6/25/2007]
Statute Only Prohibits 'Extreme Acts' - Gonzales had formally asked for the OLC’s legal opinion in response to a request by the CIA for legal guidance. A former administration official, quoted by the Washington Post, says the CIA “was prepared to get more aggressive and re-learn old skills, but only with explicit assurances from the top that they were doing so with the full legal authority the president could confer on them.” [Washington Post, 6/9/2004] “We conclude that the statute, taken as a whole,” Bybee and Yoo write, “makes plain that it prohibits only extreme acts.” Addressing the question of what exactly constitute such acts of an extreme nature, the authors proceed to define torture as the infliction of “physical pain” that is “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Purely mental pain or suffering can also amount to “torture under Section 2340,” but only if it results “in significant psychological harm of significant duration, e.g. lasting for months or even years.” [Washington Post, 6/9/2004]
Torture Legal and Defensible - Bybee and Yoo appear to conclude that any act short of torture, even though it may be cruel, inhuman or degrading, would be permissible. They examine, for example, “international decisions regarding the use of sensory deprivation techniques.” These cases, they notice, “make clear that while many of these techniques may amount to cruel, inhuman or degrading treatment, they do not produce pain or suffering of the necessary intensity to meet the definition of torture. From these decisions, we conclude that there is a wide range of such techniques that will not rise to the level of torture.” More astounding is Bybee and Yoo’s view that even torture can be defensible. “We conclude,” they write, “that, under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A.” Inflicting physical or mental pain might be justified, Bybee and Yoo argue, “in order to prevent further attacks on the United States by the al-Qaeda terrorist network.” In other words, necessity or self-defense may justify torture. Moreover, “necessity and self-defense could provide justifications that would eliminate any criminal liability.” [Washington Post, 6/8/2004] International anti-torture rules, furthermore, “may be unconstitutional if applied to interrogations” of suspected terrorists. [US News and World Report, 6/21/2004] Laws prohibiting torture would “not apply to the president’s detention and interrogation of enemy combatants” in the “war on terror,” because the president has constitutional authority to conduct a military campaign. [Washington Post, 6/27/2004]
Protecting US Officials from Prosecution - In 2007, author and reporter Charlie Savage will write: “In case an interrogator was ever prosecuted for violating the antitorture law (see October 21, 1994 and January 26, 1998, Yoo laid out page after page of legal defenses he could mount to get the charges dismissed. And should someone balk at this strained interpretation of the law, Yoo offered his usual trump card: Applying the antitorture law to interrogations authorized by the president would be unconstitutional, since only the commander in chief could set standards for questioning prisoners.” [Savage, 2007, pp. 155-156]
Virtually Unrestricted Authority of President - “As commander in chief,” the memo argues, “the president has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy.” [Washington Post, 6/9/2004] According to some critics, this judgment—which will be echoed in a March 2003 draft Pentagon report (see March 6, 2003)—ignores important past rulings such as the 1952 Supreme Court decision in Youngstown Steel and Tube Co v. Sawyer, which determined that the president, even in wartime, is subject to US laws. [Washington Post, 6/9/2004] The memo also says that US Congress “may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” [Washington Post, 6/27/2004]
Ashcroft Refuses to Release Memo - After the memo’s existence is revealed, Attorney General John Ashcroft denies senators’ requests to release it, and refuses to say if or how the president was involved in the discussion. “The president has a right to hear advice from his attorney general, in confidence,” he says. [New York Times, 6/8/2004; Bloomberg, 6/8/2004; Washington Post, 6/9/2004] Privately, Ashcroft is so irritated by Yoo’s hand-in-glove work with the White House that he begins disparagingly referring to him as “Dr. Yes.” [New York Times, 10/4/2007]
Only 'Analytical' - Responding to questions about the memo, White House press secretary Scott McClellan will claim that the memo “was not prepared to provide advice on specific methods or techniques,” but was “analytical.” But the 50-page memo seems to have been considered immensely important, given its length and the fact that it was signed by Bybee. “Given the topic and length of opinion, it had to get pretty high-level attention,” Beth Nolan, a former White House counsel from 1999-2001, will tell reporters. This view is confirmed by another former Office of Legal Counsel lawyer who says that unlike documents signed by deputies in the Office of Legal Counsel, memorandums signed by the Office’s head are considered legally binding. [Washington Post, 6/9/2004]
Memo Will be Withdrawn - Almost two years later, the OLC’s new head, Jack Goldsmith, will withdraw the torture memos, fearing that they go far beyond anything countenanced by US law (see December 2003-June 2004).
Memo Addresses CIA Concerns - The administration, particularly the axis of neoconservatives centered around Cheney’s office, has enthusiastically advocated the use of violent, abusive, and sometimes tortuous interrogation techniques, though the US has never endorsed such tactics before, and many experts say such techniques are counterproductive. The CIA, responding to the desires from the White House, hastily put together a rough program after consulting with intelligence officials from Egypt and Saudi Arabia, where detainees are routinely tortured and killed in captivity, and after studying methods used by former Soviet Union interrogators. The legal questions were continuous. The former deputy legal counsel for the CIA’s Counterterrorist Center, Paul Kelbaugh, recalls in 2007: “We were getting asked about combinations—‘Can we do this and this at the same time?… These approved techniques, say, withholding food, and 50-degree temperature—can they be combined?’ Or ‘Do I have to do the less extreme before the more extreme?’” The “torture memo” is designed to address these concerns. [New York Times, 10/4/2007]

Entity Tags: John C. Yoo, Paul Kelbaugh, Timothy E. Flanigan, Scott McClellan, John Ashcroft, Richard (“Dick”) Cheney, Jay S. Bybee, Office of Legal Counsel (DOJ), David S. Addington, Alberto R. Gonzales, Beth Nolan, Al-Qaeda, Charlie Savage, Central Intelligence Agency, Jack Goldsmith

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Some congressional leaders are reportedly briefed on the CIA’s detainee interrogation program, but what is actually said will later be disputed. The briefing is described as “a virtual tour of the CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk,” and apparently mentions waterboarding and information gleaned from detainees, according to two unnamed officials who are present and will later talk to the Washington Post.
Few, if Any, Objections Raised - Due to the feeling of “panic” following 9/11, the legislators’ attitude is described as, “We don’t care what you do to those guys as long as you get the information you need to protect the American people,” and two even ask if the methods are “tough enough.” The briefing, apparently one of the first of a series of around 30 private briefings on the CIA’s interrogation program, is for the “Gang of Eight,” the four top congressional leaders and the senior member from each party on the House and Senate intelligence committees. However, the methods used are only described in some of the briefings, and some of the meetings are just for the “gang of four”—intelligence committee members only. The groups are said to be so small because they concern highly secret covert activities, although it will later be suggested that the administration’s motivation is “partly to hide from view an embarrassing practice that the CIA considered vital but outsiders would almost certainly condemn as abhorrent.” One of the committee members present is Nancy Pelosi (D-CA), and other officials that receive such briefings are reported to include Jane Harman (D-CA), Bob Graham (D-FL), Jay Rockefeller (D-WV), Porter Goss (R-FL) and Pat Roberts (R-KS). Harman is said to be the only one to object at any point. The attendees’ recollections of the meeting will later vary greatly. Goss will say, “Among those being briefed, there was a pretty full understanding of what the CIA was doing… And the reaction in the room was not just approval, but encouragement,” although this may not be a reference to this specific meeting. Graham, who will leave the Senate Intelligence Committee in January 2003, will later say he has no memory of being told about waterboarding, “Personally, I was unaware of it, so I couldn’t object.” A “source familiar with Pelosi’s position” will say that she participates in a discussion of enhanced interrogation techniques, but understands they are at the planning stage at this time and are not in use. [Washington Post, 12/9/2007]
Restrictions on Information - Graham will later describe the limitations placed on legislators who receive such briefings: “In addition to the fact that the full members of the committee can’t hear what’s happening, those who are in the room are very restricted. You can’t take any notes. You can’t bring anyone with you and after the meeting, you cannot discuss what you’ve heard. So that if, for instance, there’s an issue about, is this legal under the Geneva Convention, you can’t go to someone who’s an expert on that subject and get their opinion. It’s a very limiting situation.” [CNN, 12/13/2007]
Secret Interrogations Already Underway - The CIA has been conducting aggressive interrogations since at least May 2002 (see Mid-May 2002 and After), but is has no firm legal basis to perform them until the Justice Department gives approval in August 2002 (see August 1, 2002). CIA Director George Tenet will later comment in a 2007 book, “After we received the written Department of Justice guidance on the interrogation issue, we briefed the chairmen and ranking members of our oversight committees. While they were not asked to formally approve the program as it was done under the President’s unilateral authorities, I can recall no objections being raised.” [MSNBC, 9/13/2007]

Entity Tags: Porter J. Goss, Senate Intelligence Committee, Pat Roberts, Nancy Pelosi, John D. Rockefeller, Jane Harman, Central Intelligence Agency, George J. Tenet, House Intelligence Committee, Daniel Robert (“Bob”) Graham

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Several high-level Bush administration lawyers arrive in Guantanamo. The group includes White House counsel Alberto Gonzales; Vice President Cheney’s chief of staff David Addington, who had helped the Justice Department craft its “torture memo” (see August 1, 2002); CIA legal counsel John Rizzo, who had asked the Justice Department for details about how interrogation methods could be implemented (see June 22, 2004); and the Pentagon’s general counsel, William J. Haynes. They are at Guantanamo to discuss the case of suspected “20th hijacker” Mohamed al-Khatani (see August 8, 2002-January 15, 2003).
Pressure from Washington - The commander of the Guantanamo facility, Major General Michael Dunlavey, will recall: “They wanted to know what we were doing to get to this guy, and Addington was interested in how we were managing it… They brought ideas with them which had been given from sources in DC. They came down to observe and talk.” Dunlavey will say that he was pressured by Defense Secretary Donald Rumsfeld himself to expedite the interrogation and use extraordinary means to squeeze information from the suspect. “I’ve got a short fuse on this to get it up the chain,” Dunlavey recalls. “I was on a timeline. This guy may have been the key to the survival of the US.” Asked how high up the pressure was from, Dunlavey will say, “It must have been all the way to the White House.” Rumsfeld is “directly and regularly involved” in all the discussions of interrogations.
'Do Whatever Needed to Be Done' - Staff judge advocate Lieutenant Colonel Diane Beaver will recall that Addington is “definitely the guy in charge,” taking control of the discussions. Gonzales is quiet. Haynes, a close friend and colleague of Addington’s, seems most interested in how the military commissions would function to try and convict detainees. The lawyers meet with intelligence officials and themselves witness several interrogations. Beaver will recall that the message from Addington and his group is “Do whatever needed to be done.” In essence, the Guantanamo interrogators and commanders are given a green light from the administration’s top lawyers, representing President Bush, Vice President Cheney, Rumsfeld, and the CIA. [Vanity Fair, 5/2008]

Entity Tags: William J. Haynes, US Department of Justice, Mohamed al-Khatani, Michael E. Dunlavey, David S. Addington, Diane E. Beaver, Central Intelligence Agency, Alberto R. Gonzales, Bush administration (43), Richard (“Dick”) Cheney, Donald Rumsfeld, John Rizzo, George W. Bush

Timeline Tags: Torture of US Captives, Civil Liberties

Two days after General Rick Baccus has been relieved from duty as the guard commander at Guantanamo (see October 9, 2002), and almost one and a half months since the writing of the Office of Legal Counsel’s (OLC) August memo on torture (see August 1, 2002), military intelligence at Guantanamo begin suggesting new rules of interrogation. Lieutenant Colonel Jerald Phifer, Director J2, sends a memo, to Major General Michael E. Dunlavey, Commander of Joint Task Force (JTF) 170, requesting approval for more severe interrogation techniques. [US Department of Defense, 10/11/2002 pdf file; New Yorker, 2/27/2008] In 2009, Senator Carl Levin (D-MI) will write (see April 21, 2009) that Dunlavey’s request is sparked by recent reports on the use of SERE training techniques for interrogation purposes (see January 2002 and After and April 16, 2002). [Huffington Post, 4/21/2009]
Three Categories of Techniques - The memo states, “The current guidelines for interrogation procedures at GTMO [Guantanamo] limit the ability of interrogators to counter advanced resistance.” Phifer proposes three categories of techniques. The mildest, which includes yelling and weak forms of deception, are included in category one. Category two techniques are more severe and require approval by an “interrogator group director.” They include the use of stress positions for up to four hours; use of falsified documents; isolation for up to 30 days; sensory deprivation and hooding; 20-hour interrogations; removal of comfort and religious items; replacing hot food with cold military rations; removal of clothing; forced grooming, including the shaving of beards; and playing on detainees’ phobias to induce stress, such as a fear of dogs. The harshest techniques, listed in category three, are to be reserved for a “very small percentage of the most uncooperative detainees” and only used with permission from the commander of the prison. These methods include using non-injurious physical contact like poking or grabbing; threatening a detainee with death or severe pain or threatening that a family member would be subjected to such harm; exposing him to cold weather or water; using a wet towel to “induce the misperception of suffocation.” [US Department of Defense, 10/11/2002 pdf file; New Yorker, 2/27/2008]
Desire to Extract More Information from Detainee - The request is prompted in part by military intelligence’s belief that Guantanamo detainee Mohamed al-Khatani has more information than the FBI has managed to extract from him. “Al-Khatani is a person in… whom we have considerable interest,” Dell’Orto will explain during a 2004 press briefing at the White House. “He has resisted our techniques. And so it is concluded at Guantanamo that it may be time to inquire as to whether there may be more flexibility in the type of techniques we use on him.” [Washington File, 6/23/2004]
JAG Officer Concludes Tactics are Legal - The same day, a staff judge advocate, Lieutenant Colonel Diane E. Beaver, reviews Phifer’s proposed techniques for legality and, while making qualifications and recommending further review, concludes in a memo to Dunlavey that they are legal. Also the same day, Dunlavey sends the list of techniques to his superior, General James T. Hill, commander of the Southern Command, requesting approval for their use. Dunlavey writes: “Although [the techniques currently employed] have resulted in significant exploitable intelligence the same methods have become less effective over time. I believe the methods and techniques delineated in the accompanying J-2 memorandum will enhance our efforts to extract additional information.” [US Department of Defense, 10/11/2002 pdf file] Beaver concludes that since President Bush had decided that all the detainees “are not protected by the Geneva Conventions” (see January 18-25, 2002, February 7, 2002), all of the desired techniques are allowable because “no international body of law directly applies.” [Savage, 2007, pp. 178]

Entity Tags: Rick Baccus, George W. Bush, James T. Hill, Carl Levin, Daniel J. Dell’Orto, Diane E. Beaver, Michael E. Dunlavey, Mohamed al-Khatani

Timeline Tags: Torture of US Captives

The Navy’s general counsel, Alberto Mora, is angered at the lack of response to his attempts to persuade the Pentagon to stop abusing prisoners at Guantanamo and is particularly frustrated with the Pentagon’s general counsel, William J. Haynes (see December 20, 2002 and January 9, 2003 and After). Mora decides to take a step that he knows will antagonize Haynes, who always warns subordinates never to put anything controversial in writing or in e-mail messages. Mora delivers an unsigned draft memo of his objections to Haynes, and tells him that he intends to “sign it out” that afternoon—thereby making it an official document—unless the harsh interrogation techniques at Guantanamo stop. Mora’s memo describes the interrogations at Guantanamo as “at a minimum cruel and unusual treatment, and, at worst, torture.”
'Working Group to Be Created - Haynes calls Mora later that day with good news: Defense Secretary Donald Rumsfeld is suspending his authorization of the disputed interrogation techniques (see December 2, 2002) and is appointing a “working group” of lawyers from all branches of the armed forces to develop new interrogation guidelines. Mora will be a part of that working group. An elated Mora begins working with the group of lawyers to discuss the constitutionality and effectiveness of various interrogation techniques. In 2006, he will say that he felt “no one would ever learn about the best thing I’d ever done in my life.”
Mora Outmaneuvered - But Haynes has outmaneuvered Mora. A week later, Mora sees a lengthy classified document that negates every argument he has made. Haynes has already solicited a second, overarching opinion from John Yoo, a lawyer at the Justice Department’s Office of Legal Counsel, that supersedes Mora’s working group (see January 9, 2002). Mora is astonished (see January 23-Late January, 2003). He will later learn that the working group’s report will be forced to comply with Yoo’s legal reasoning. In fact, the group’s final report is never completed—though the draft report, which follows Yoo’s memo, is signed by Rumsfeld without Mora’s knowledge. [New Yorker, 2/27/2006] Mora later says that while Yoo’s memo displays a “seeming sophistication,” it is “profoundly in error,” contradicting both domestic law and international treaties. Mora and the other “dissident” members of the working group are led to believe that the report has been abandoned. [Savage, 2007, pp. 181] He will learn about Rumsfeld’s signature on the draft report while watching C-SPAN in mid-2004. [New Yorker, 2/27/2006; Savage, 2007, pp. 189]

Entity Tags: US Department of Defense, US Department of Justice, Alberto Mora, John C. Yoo, Office of Legal Counsel (DOJ), Donald Rumsfeld, William J. Haynes

Timeline Tags: Torture of US Captives, Civil Liberties

The Navy’s general counsel, Alberto Mora, is shocked when he reads a legal opinion drafted by John Yoo, of the Justice Department’s Office of Legal Counsel, about techniques that can be used in prisoner interrogations (see January 9, 2002). Mora has been fighting the use of questionable techniques and was part of a working group that was reviewing them (see January 15-22, 2003). The opinion was sought by Pentagon general counsel William J. Haynes and not only counters every legal and moral argument Mora has brought to bear, but supersedes the working group. Only one copy of the opinion exists, kept in the office of the Air Force’s general counsel, Mary Walker, the head of the working group.
'Catastrophically Poor Legal Reasoning' - Mora reads it in Walker’s office with mounting horror. The opinion says nothing about prohibiting cruel, degrading, and inhuman treatment of detainees; in fact, it defends such tactics. While sophisticated, it displays “catastrophically poor legal reasoning,” he will later recall. Mora believes that it approaches the level of the notorious Supreme Court decision in Korematsu v. United States, the 1944 decision that upheld the government’s detention of innocent Japanese-Americans during World War II. Mora is not aware that Yoo, like Haynes, is a member of an informal but extremely powerful “inner circle” dominated by David Addington, the chief of staff for Vice President Cheney. In fact, Yoo and Haynes are regular racquetball partners. Like Addington and Cheney, Yoo believes in virtually unrestricted executive powers during a time of war. Yoo wrote that almost any interrogation methods used against terror suspects is legally permissible, an argument that shocks Mora.
Mora's Response - In his June 2004 memo on the subject (see July 7, 2004), Mora will write, “The memo espoused an extreme and virtually unlimited theory of the extent of the President’s Commander-in-Chief authority.” Yoo’s reasoning is “profoundly in error,” Mora concludes, and is “clearly at variance with applicable law.” In 2006, Mora will add, “If everything is permissible, and almost nothing is prohibited, it makes a mockery of the law.” He writes to Walker shortly thereafter, saying that not only is Yoo’s opinion “fundamentally in error” but “dangerous,” because it has the weight of law and can only be reversed by the Attorney General or the President. Walker writes back that she disagrees, and she believes Haynes does as well. Two weeks later, Mora will discuss the memo with Yoo (see February 6, 2003). [New Yorker, 2/27/2006]

Entity Tags: William J. Haynes, David S. Addington, Alberto Mora, John C. Yoo, Mary L. Walker, Office of Legal Counsel (DOJ), Richard (“Dick”) Cheney, US Department of Defense, US Department of Justice

Timeline Tags: Torture of US Captives, Civil Liberties

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